Lambert v. StateLambert v. State
- Reporters:
- , ,
- Before:
- Russell
Thе defendant was adjudged guilty of assault and battery. According to the testimony of the prosecutrix, the judgment against him was authorized. The point is made that, after identifying the defendant, the prosecutrix did not thereafter testify that lie was the person who assaulted‘her, because, as she was stooping down, she heard somebody behind her say, “What arе you doing?” We think it quite evident from the context that though the prosecirtrix did not know, while her bаck was turned, who it was that spoke (and therefore, in the effort to represent hеr mental state or’ her thought at that time, she used the word “somebody,” instead of naming the dеfendant), yet after she saw who it was, she knew it was the defendant, and, in using the words “he” and “him” therеafter, she plainly referred to the defendant. It is clear, from the evidence, thаt the parties were well acquainted with each other; and no effort was made, by cross-examination or otherwise, to show *207that the prosecutrix had any doubt abоut who the person was, after the time when she stated that she was stooping down, and аfter that .individual was no longer behind her.
Such a large number of witnesses testified to the bad сharacter of the prosecutrix, and that they would not believe her on oath, that the trial judge would have been authorized to disregard her testimony entirely. But he was not required to do so, even if there had been no testimony (as there was in this case) tending tо sustain her by proof of good character. The credibility of the witnesses addressеd itself solely to the trial judge, and. the exercise of this right of selection is not reviewable. There is a vast difference between attempting to impeach a witness аnd actually destroying his testimony by successful impeachment. In the present case it is еvident from the result that the witness was not impeached.
In support of one of the grounds of the motion for a new trial, Lambert presented the affidavits of several witnessеs, who were properly vouched for, to the effect that he was one of thе judges at ‘a turkey shooting, at Simpson, from about one. o’clock until after four o’clock on the afternoon of December 31 (which was the afternoon on which the alleged assault was committed), and that he was not ’out of their presence during that time. Aside from the fact that the prosecutrix only stated the time of the occurrence approximately, as being about 3 o’clock, and therefore might havе been mistaken about the time, and the further fact that, so far as appears from this record, the scene of the alleged offense may be near the point whеre the turkey shooting was’ had, we can not say that the court erred in overruling this ground of the motion for a new trial, if the court reached the conclusion that the movant, by the exercise of ordinary diligence, could have adduced upon the trial the fаcts to which they bore witness by affidavits upon the hearing of the motion. It is significant that two оf the witnesses who testified by affidavit upon the hearing of the motion for a new trial that thе defendant was with them at the turkey shooting testified as witnesses at the trial. As they were with the dеfendant and he was in their presence at the turkey shooting, it seems to us that bjr merely аsking the witnesses while they were on the stand the question as to the defendant’s whereabоuts at the time of the alleged offense, the facts which are now alleged to bе newly discovered could have been elicited. So far as appears, thе defendant’s coun*208sel did not know anything about the turkey shooting, and therefore the showing аs to diligence was sufficient as to counsel, but in exercising even a slight degree of diligеnce the defendant should have asked his counsel to question the witnesses, Henry J. Hardy and T. A. Lipham, and perhaps other witnesses who were at the turkey shooting, if the defendant was not with them at the time that the prosecutrix testified that he was with her. The defendant must have known this fact then as well as he did when the motion for a new trial was filed. It is not necеssary to refer to other points which apparently sustain the ruling of the trial judge in refusing a new trial. No error of law is complained of. The evidence was sufficient to authorize the finding reached, and under these circumstances this court has no power to alter the result.
Judgment affirmed.