43 La. Ann. 1108 | La. | 1891
The opinion of the court was delivered by
The record presents two bills of exception, one taken to the refusal of a motion for new trial, and the other to certain actions of the judge in the course of the argument.
The first bill excepts to the overruling of two of the grounds set forth in the motion. One ground was that the defendant and his. counsel were surprised by the course of the prosecution in entering a nolle pros, as to one Jennie Jones, who had been indicted as an accessory to the crime, and in using her as a witness for the State. The judge a quo, in the statement of his reasons, aptly says: “The accused can not be permitted to take the chances of an acquittal, and then set up surprise after trial. He might have secured a continuance or a delay of the trial, if he had urged his reasons at the time the nolle pros, was entered, and the State’s attorney had expressed his intention to use her as a witness. He was then fully informed of the action of the State, and he should have complained there, if he felt aggrieved.” This is sufficient and conclusive.
The other ground was that of newly discovered evidence. It appears on the face of the motion that the evidence had no purpose or effect other than to impeach the testimony of a witness for the State. The well-established general rule is that such evidence is not ground for new trial, and the facts of this case suggest no reason for making an exception in its favor. State vs. Burt, 41 An. 787; also 38 An. 608, id. 364, id. 361; 36 An. 46, id. 9; 34 An. 446; 32 An. 1227.
The second bill excepts to certain statements and ruling of the judge in the course of the trial.
It is sufficient to say that under the full statement appended by the judge to the bill, the exception is left without a shadow of force or merit.
Judgment affirmed.