85 Ark. 179 | Ark. | 1908
(after stating the facts.) Appellant has not filed a brief for the assistance of'the court in this case. Hence we do not know upon what assignments of error he is most confident for a reversal, and have given to each of them such consideration as we think it deserves.
The 5th, 10th, and nth grounds may be considered together, They are based upon the examination of the witness Hicks as follows:
. “Q. Don’t you know what is likely to happen to you to swear something wron'g; that you are liable to go to the penitentiary?” (Objected to by defendant.)
The court: “He has a right' to get the truth.”
(The remark of the court was objected to by defendant.)
A. “Mr. Smith has talked to me, but he told me to swear the truth.” 1
The latitude allowed in the examination of a witness apparently hostile is largely in the discretion of the trial court. The suggestion by the prosecuting attorney that the witness was liable to go to the penitentiary if he swore something wrong was not under the circumstances improper.
The remark of the court'in overruling the objection thereto made by defendant’s counsel we do not think was an expression by the court of the truth or falsity of witness’ statement, but was intended by the court, and no doubt understood by the jury, to mean that it was a proper question in testing the credibility of the witness. The object of the 'examination of a witness is to get the truth.
2. It was not error to permit the witness, George Holland, to relate the dying declaration of the deceased, George Fields.
Witness testified that he arrived at the scene of the killing about one-half an hour before George Fields died; that Fields was bleeding, and called on the Lord to have mercy upon a poor dying man; that Fields made a statement to him relative to the homicide; that witness left the scene immediately after the statement was made; that Field’s eyes were glassy, and he was dying fast. The circumstances detailed by the witness clearly show that the statement was made under apprehension of impending death from the injury received. Newberry v. State, 68 Ark. 355.
3. The instructions must be considered as a whole. We have carefully considered them. None were asked by the defendant which were not covered by those already given by the court. There are no new principles of law involved in the instructions. They are but applications of well-established principles, and no good purpose can be served by setting them out in full and reviewing them in detail.
4. Appellant contends that the court erred in not granting him a new trial on the ground of newly discovered evidence. Motions for a new trial on the ground of newly discovered 'evidence are addressed to the sound legal discretion of the presiding judge; and it is only in case of apparent abuse of that discretion or of injustice that this court interferes. Anderson v. State, 41 Ark. 229; Armstrong v. State, 54 Ark. 364. Appellant in his motion for a new trial says that he did not know of this testimony at the time of the trial, and could not by reasonable diligence have known it. But this is not. sufficient. Affidavits should be filed with the motion, and it should state the acts done which are denominated reasonable diligence and the facts and circumstances under which the newly discovered evidence came to the knowledge of defendant. Runnels v. State, 28 Ark. 121; Campbell v. State, 38 Ark. 498; Robinson v. State, 33 Ark. 180; St. Louis S. W. Ry. Co. v. Goodwin, 73 Ark. 528.
We find no prejudicial error in the record, and the judgment is therefore affirmed.
