8 Blackf. 540 | Ind. | 1847
This was an indictment for a rape. Plea, not guilty. Verdict and judgment for the state.
A bill of exceptions shows the following facts: On the trial, a witness stated that the offence was committed at the
The only error assigned is the examination of the last-mentioned witness.
We do not think that the judgment should be reversed for the cause assigned.- The defendant’s counsel might have cross-examined the witness objected to; and,^indeed, he might have examined other witnesses on the subject. Such oversights as the one we are considering must sometimes happen, and the furtherance of justice requires that they should not be fatal. Had the prosecuting attorney entered a nolle prosequi, instead of calling the witness, the prisoner could not have been indicted again for the same offence. Commonwealth v. Wade, 17 Pick. 395. It seems, therefore, that it was necessary in this case to adopt the course pursued, or permit the prisoner to escape without a full and fair trial of the issue.
There is the following case connected with the question before us: A person was indicted for stealing certain banknotes, the property of one Nash. On the trial, a doubt arose
The judgment is affirmed with costs.