Overton v. State

| Miss. | Mar 15, 1912

Smith, J.,

delivered the opinion of the court.

Appellant, having been convicted of the crime of murder and sentenced to the penitentiary for life, appeals to this court.

He complains, first, that after he had been granted twelve instructions by the court below, the court refused to grant him “any further instructions, for the reason that it was the rule of the court to limit the instructions to twelve.” He failed to have his refused instructions marked “Filed” by the clerk; consequently they never became a part of, and do not appear in, the record. Conceding, but not deciding, that the court should not arbitrarily limit the number of instructions to twelve, before it can be said that an instruction was erroneously refused by the court, it must appear that it correctly announces the law applicable to the case. This we cannot ascertain, unless the instruction itself is before us. This assignment, therefore, is without merit.

None of the witnesses whose names appear on the back of the indictment were introduced by the state; his guilt being proved by other witnesses. In his motion for a new trial, appellant alleges that he has discovered testimony, unknown to him before, by which he will be able to show that the two witnesses by whom the state’s case was proven were not present at the difficulty which resulted in the death of deceased. He filed with this motion the affidavits of several witnesses, who state that they were present at the difficulty and that the state’s witnesses were not there. This motion was by the court properly overruled. The newly discovered testimony merely tended to impeach the credibility of the witnesses, and was merely negative in its character; and, moreover, the affidavit showing diligence was not signed by appellant, and was signed by only two of his four attorneys. Tuberville v. State, 38 South. 333.

Affirmed.