86 Va. 489 | Va. | 1890
delivered the opinion ot the court.
Louis Schonberger was indicted in the hustings court of the city of Richmond, on the 17th day of July, 1889, for, within
We are of opinion that the court did not err in overruling the mot-iou for a continuance, as set forth in the first bill of exceptions. The record shows that the trial of the case had been continued from term to term, from July to October, upon the repeated motions of the accused; that the witness (Hayes) had never been summoned, and that the accused did not support the motion for a continuance at the November term by affidavit to the materiality and indispensibility of Hayes, though he did state what he expected to prove hy Hayes’ testimony. The court exercised only a sound discretion in denying the motion for a further continuance when the accused had not brought himself within the rule of due diligence. ■ The error assigned upon the facts set forth in the second bill of exceptions is well taken. The evidence proffered by the witness (Hayes) would, if believed hy the jury, have established the fact that the seduction took place five years before the prosecution was begun, and that it was barred by the statute (sec. 3679, Code of Virginia, 1887); and when the witness (Hayes) came into court the next morning and stated the all-sufficient reason why he could not be present in court the day before; and -when the opening argument for the commonwealth only had been made, and the case not submitted to the jury, the motion of the accused to allow the testimony to he then heard and considered by the jury, ought to have been granted, and the court, erred in refusing it. The nature of the prosecution, and the peculiar circumstance which .had necessitated the absence of the witness the day before, and justice to the accused, required that he should have been allowed the benefit of the proffered testimony, for what it may have been worth in the estimate of the jury.
Judge Burks, in the case of George v. Pilcher, 28 Gratt.,
In the case of McDowell’s Executors v. Crawford, 11 Gratt., this court decided that, under the circumstances of that case, it was error for the trial judge to refuse to allow the appellants to recall one of their witnesses after the evidence had closed and the argument begun.
In Divingston’s case, 7 Gratt., all the evidence had been closed, and the arguments all concluded, and the case had been submitted to the jury, and the jury had retired to consider of their verdict, and, not being able to agree upon a verdict on the first day, they were brought into court and adjourned over in the usual way until the next day, when the counsel for the prisoner asked the court to give a certain instruction; instead of giving which the court allowed the commonwealth, upon her motion, to recall a witness who supplied a defect in the commonwealth’s evidence; and upon the review of the ease, the general court said: “ Whilst we have no hesitation in saying that, as a general rule, after a cause has been submitted to a jury it is improper to introduce new testimony or to examine new witnesses, there can be no doubt of the propriety, for good cause shown, of admitting new testimony or the examination of new witnesses. When the circumstances of the case make it necessary and proper to do so, the court ought to permit either party to introduce new witnesses and new testimony.” See Fleet and Semple v. Nolen Kemp, 13 B. Monroe; Taylor, v. Shemwell, 4 B. Monroe; 11 West Va., 213; Armistead’s case, 7 Gratt; Taylor v. Commonwealth, 77 Va. (2 Hansbrough), 692.
Judgment reversed.