| Ark. | Nov 15, 1881
OPINION.
The court very properly refused to give the jury the second instruction asked by the defendant. Instructions should not be based on isolated facts, or only part of the evidence, but should be so framed that all parts of the evidence should be considered and weighed by the jury. Proff. on Trial by Jury, sec. 319; Thomp. on Charging the Jury, sec. 71; Bush v. The State, ante 215; Winter v. Bandel et al., 30 Ark., 383. It did not necessarily follow, because the defendant had cattle of like description to the steers owned by Speaks, and sold them by description, as they run at large, that the evidence which tended to prove, that knowing they were not his own, he himself drove and delivered one of Speaks’, to the purchaser, at his slaughter pen, and that by claiming it as his own and as one of those he had sold, induced the purchaser, or his servants, to drive the other there, could not have been true.
A new trial will not be granted on the ground of newly discovered evidence, where it appears that the evidence was known to the party before the trial, and no good reason is shown for not procuring it. Holeman v. The State, 13 Ark., 105; Bourland v. Skimne, 11 Ark., 671: Fikes v. Bentley, Hemp. 61.
The facts which the defendant alleged he would be able to prove, were, if true, within his own knowledge, and he could as easily before as after the trial have found the witnesses.
There was no want of evidence to sustain the verdict.
The judgment is affirmed.
Conceding that no technical error exists in this case, I am dissatisfied with the proceedings and the result, and would prefer, for safety and in favor of liberty, to direct a new trial. The Court on several occasions has done this, where there has been no specific error upon any one-point, sufficient of itself to justify reversal.
It is evident that the main defense rested upon this point ; that the defendant was sick and infirm, and sold the cattle in the woods by description; that he had cattle of like description ; and that if he meant to sell his own, and other cattle of like description had been taken from the range, in place of them, by mistake, or by the vendee or his servants, without defendant’s special directions, the case would not be one of larceny. There was evidence upon that point before the jury, and they should have been instructed with regard to it in .-some way, to have enabled them to act intelligently upon that particular point. The second instruction was so intended. It was not framed however, so as to be strictly •correct. The Court refused it absolutely, without proposing to modify it, or to give any upon that point in lieu of it. I cannot say that the judge was obliged to do so, but I think it would have been better. As it was, the jury went out wholly uninstructed on the point.
The evidence is brought up by the bill of exceptions in -•a very confused condition, and perhaps is not as clear to us as it was to the jury. Still it is apparent that a good deal of it was hearsay and incompetent— admitted without objection. ’That was not error, but it made it more important that the jury should be well instructed. The evidence, as it appears in'the transcript, does not make on my mind, that clear and undoubting assurance of guilt, which it is important that a jury should have, although I would not make this an objection to a verdict on full and clear instructions; yet I cannot resist the apprehension in this case, that it might have been different if the second instruction, with a slight modification, had been given.