55 Ark. 567 | Ark. | 1892
The first duty of a party surprised at the trial by the testimony offered by his adversary is to make application for a postponement of the trial, in order that he may repair the damage done him by the unexpected testimony. If the delay is granted and his witnesses secured, he has no cause to complain. If the court x-efuses to grant him the opportunity to get his witnesses to refute the unexpected testimony, he is then in position to press the court’s refusal as a ground for a new trial. If he takes his chance of a verdict in his favor in spite of the surprise, without an effort to repair the injury while yet he may, he must abide his election to stand the hazard of the verdict. He is held to have waived whatever right of objection he may have had, when he discovers his surprise for the first tune after verdict. It may be, for aught that appears in this record, that, upon a timely application for a postponement of a few days, the attendance of all the witnesses whom the appellant desires now to examine could have been had at his trial. He made no such application, but elected to strive for an acquittal on the testimony he had, suppressing his surprise for use as a masked battery in his effort for a new trial. The court did not err in disregarding it.
There is no other question of serious consideration in the case.
Affirm.
