4 Indian Terr. 567 | Ct. App. Ind. Terr. | 1903
The only proposition urged by counsel for appellants is that the court erred in refusing to grant a new trial on the ground that a witness for the government — J. H. Brown (• — was permitted to testify without having been sworn. The question was first raised by the motion for new trial, no objection having been made before verdict. Affidavits of some of the jurors who tried the case were offered, in support of the motion for new trial, to the effect that the testimony of the witness Brown had great weight in securing a conviction; and one juror made affidavit “that his vote was for acquittal, and that the only reason" he agreed to find a verdict of guilty was upon the proposition and assurances from other members of the panel that the Langfords would be certain to get a new trial on account of the fact that J. H. Brown had not been sworn." On the hearing of the motion for hew trial, however, the court very properly refused to consider these affidavits. Section 2298, Mansf. Dig. (§ 1641, Ind. Ter. St. 1899), provides that “a juror cannot be examined to establish, as a ground for -a new trial, except to establish, as a ground for a new trial, that the verdict was made by lot." And the Supreme Court of Arkansas, in Wilder vs State, 29 Ark. 293, in passing upon this identical section, as contained, at that time, in Gantt's Digest, say: “Under our statute a juror can be examined to establish no other ground for a new trial than that the verdict was made by lot.” On this question we are cited by counsel for appellants to the case of Mattox vs United States, 146 U. S. 140, 13 Sup. Ct. 50,
But is the admitted fact that a witness in a criminal case is permitted to testify on behalf of the government without being sworn such a violation of the legal rights of a defendant as to entitle him to a new trial, w-hen the question is not raised until after verdict. The adjudicated cases upon this, question are few in number, and are very conflicting. The text-writers seem to very carefully guard against expressing any positive opinion; and, indeed, one court, in passing upon this same proposition, deemed it “peculiar in its nature'.” And this is undoubtedly so. On the one hand, we are confronted by the proposition, which has been embodied in all law from time immemorial, that a -witness must be sworn (or affirmed) before he is competent to testify; and, on the other hand, by the principle, as firmly established, that a party must make timely objection to proceedings which are erroneous, else,he will be deemed to have -waived them. Counsel for appellants, in their brief, cite' us to many authorities sustaining the proposition (which all must concede) that a witness must be sworn before he is called to testify, and call our attention to one case (and only one)
From an examination of the cases cited by appellee it will be seen that they are either not in point, or based upon uncertainty as to whether the failure to swear the witness was not known until after the verdict, or that failure to swear was the fault of the party making the objection. In Goldsmith vs State (Tex. Cr. App.) 22 S. W. 405, the court say: “It is made ground for new trial, by amended motion, that the witness McConnell was not sworn before testifying. The agreed statement of facts shows that he was introduced by and testified for the defendant. The amendment alleges that he “testified for the state.” No objection was reserved at the trial, and it is too late to raise this question on motion for new trial, even if he testified for the state.” In Trammell vs Mount (Tex. Sup.) 4 S. W. 377, 2 Am. St. Rep. 479, the Supreme Court of Texas say: “The appellants allowed the witness to give his testimony without being sworn, and thereby waived any objection to it
We therefore hold that the court erred in refusing to grant a new trial in this cause, and for that reason the judgment is reversed and remanded.