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$ 7. Evidence.
Evidence that a witness suspected that acThe evidence need not "exclude to a moral cused would burn the building and watched. certainty every hypothesis but that of the guilt was inadmissible.-Williams v. State (Miss. 197. of the defendant" to authorize his conviction.Smith v. State (Ala.) 800.
§ 10. — Admissions, declarations, and
hearsay. A defendant in a homicide case has the bur
Evidence that defendant was silent when a den of showing by a preponderance of the evi- statement accusing him of the crime was made dence to the reasonable satisfaction of the jury near enough for him to hear it held admissible, that he was affected with a disease of the though witness cannot state positively that he brain, when the crime was committed, which heard it.-Davis v. State (Ala.) 369. either prevented knowledge of right wrong as applied to the particular act, or
Declarations by defendant which are no part which destroyed his power of choice.--Lide v.
of the res gestae are inadmissible in his behalf. State (Ala.) 553.
--State v. Harris (La.) 646. The physical or mental condition of a person,
Evidence of admissions, not part of the res or his babits, may be proved by the opinion of gestæ, made by another person, to the effect an ordinary witness.- Mitchell v. State (Fla.) that it was he, and not the accused, who killed 212.
deceased, are inadmissible as hearsay.--State
v. Young (La.) 993. The evidence of an accomplice should be received with caution; but, if it carries con
Where a witness had testified that defendant viction, the jury should giv to it the same
had offered to hire him to burn the building. effect as that of a witness in no way implicat. evidence that witness had told other persons of ed in the offense.-Myers v. State (Fla.) 273).
inadmissible.- Williams 1.
State (Miss.) 197.
Confession of defendant held admissible as Affidavit on which defendant was arrested State v. Sims (La.) 71.
against him, but not against his codefendant.held inadmissible to prove that a certain witness had not made it. when such fact had al- Confessions attributed to the defendants. ready been established.-State v. Jackson (La.) made freely and voluntarily, and without the 52.
inducements of promises or threats, held adTestimony of a witness at a preliminary ex
missible.--State v. Edwards (La.) 308. amination cannot be used on trial, without Evidence held not to show that a confession showing his death or permanent absence.-State was voluntary beyond a reasonable doubt.v. Banks (La.) 53.
Blalock v. State (Miss.) 105. Testimony of prosecutor on charge of rob- Where defendant was indicted in the cirbery, he subsequently dying from blow received cuit court for burglary and larceny, and he in perpetration of the robbery, held inadmissi. had pleaded guilty to larceny before a justice, ble on prosecution for murder.-Dukes v. State he was entitled to an instruction limiting the (Miss.) 744.
plea of guilty to the charge of larceny only.Acts 1900, c. 104, does not authorize the ad- Richardson v. State (Miss.) 511. mission of evidence, in au action for a penalty That defendant, charged with larceny, admitfor violation of the liquor laws, under Code ted his guilt, is insufficient to convict him of 1892, § 1390, that defendant had a United | burglary in connection with the larceny, withStates liquor license, in the absence of a prior out other evidence of such fact.-Richardson demand on him for its production.-Clark v. v. State (Miss.) 344. Adams (Miss.) 746.
$ 12. Time of trial and continnance. $ 8.
Facts in issue and relevant to Where one is bound over to answer an indictissues, and res gestæ.
ment, his case is pending through the term of Where defendant, charged with murder, fled the court to which he is bound, unless sooner the country immediately after the homicide, discharged.--Young v. State (Ala.) 373. eridence that three weeks thereafter a mob Where the city court has by the mittimus of was formed and an attempt made to lynch his the recorder obtained jurisdiction of the person brother, who was indicted with defendant, was and offense of a defendant, he cannot be disa not competent as going to show that the flight charged on habeas corpus during the life of was not due to conscious guilt.--Sanders v. the mittimus.-Young v. State (Ala) 373. State (Ala.) 564.
Where one is bound over to answer an inIn prosecution for murder. declarations by dictment, and the court adjourns without takdefendant on starting toward deceased held ad- ing any action in the case, he cannot be longer missible as part of res gestæ.-Campbell v. detained; the mittimus being functus officio.State (Ala.) 802.
Young v. State (Ala.) 373. Where the accused is tendered by his coun- , Where the court, no indictment having been sel to make before the jury an uusworn state- found against a defendant, enters an order of ment, he cannot give evidence as to matters' continuance for further investigation by the which he could not testify to under oath.-State grand jury, the life of the mittimus is prev. Perioux (La.) 1016.
served, and defendant can properly be detained Materiality and competency in
thereunder.--Young v. State (Ala.) 373. general.
Until accused has had the benefit of comDefendant having on cross-examination of a pulsory process to secure the attendance of wit. witness elicited from him part of a conversa
nesses, he cannot be forced to trial.- State r.
Fairfax (La.) 1011. tion with a person, the state may on rebuttal show the entire conversation.-Davis v. State An accused has not bad the benefit of com(Ala.) 569.
i plusory process, where the witness has not apEvidence by defendant that a person not a
pered and the sheriff has made no return of witness, nor shown to have been known to
summons in his hands.-State v. Fairfax (La.)
1011. any witness for the state, attempted to procure a witness produced by defendant to give false Where the state, under Acts 1894, No. 84. evidence by throats. is properly excluded.- admits, to aroid a continuance. that an absent Vyers v. State (Fla.) 275.
witness would, if present, testify to certain ma
terial facts, proof of counter declarations by Where defendant was charged with a tranthe witness on another occasion held inadmis- sitory crime, and the evidence showed that it sible in evidence.-State v. Guy (La.) 1012. was committed outside the parish line, an ob
Refusal to allow defendant in a criminal case jection ou such ground must be raised before time to put in writing a motion for a continu- , the jury retires.-State v. Harris (La.) 782. ance on ground of absence of a witness held er
$ 15. ror.-Hattox v. State (Miss.) 579.
Arguments and conduct of
counsel. Where, on defendant's trial for murder, his It is not error, in a prosecution for assault wife, a material witness, was sick, the re- and battery, to refuse to allow defendant's fusal of a continuance held error which was counsel to read law to the jury.-Walkley v. uot cured by permitting defendant's affidavit State (Ala.) 854. of that to which she would testify to be read to the jury.--Scott v. State (Miss.) 710.
Statements by the state's attorney, in his
argument in a homicide case, that the killing $ 13. Trial.
was an assassination, and that an acquittal Where defendant and his brother were jointly would allow another murderer to go unwhipindicted for murder, the fact that the brother ped of justice.” held not improper. -Lide v. Was tried first, convicted, and the verdict find
State (Ala.) 953. ing him guilty was written on the indictment, Improper remarks of witnesses, though exdid not avoid the legal necessity of the paper cepted to, are not grounds for reversal, where being with the jury when they retired to make the court promptly excludes them from the conup the verdict on the trial of defendant.-sideration of the jury.-Conrad' v. State (Miss.) Sanders v. State (Ala.) 564.
709. Refusal to delay trial till a witness could be Allowing prosecuting attorney, on a prosecu. brought into court held not an abuse of dis- tion for murder, to assume in his argument cretion.--Wells v. State (Ala.) 572.
that a threat had been made by defendant Where an order was made for a venire in a
against deceased, when the evidence thereof capital case under Code, $ 5005, and the list
was conflicting, held error.–Middletou v. State served on defendant contained the names of
(Miss.) S09. two whom the return of the sheriff showed
$ 16. Province of court and jury were not summoned, it was error to refuse a
in general. motion, made before trial, to quash the venire. -Smith v. State (Ala.) 942.
An instruction on a prosecution for murder
held properly refused as improperly assuming Under Code, $$ 500), 5273, the venire, served that defendant was in danger of his life when on a defendant in a capital case tried ou a day he killed deceased.--Pugh v. State (Ala.) 727. in a week subsequent to that in which the special jurors for such trial are drawn, need and 30 witnesses have been examined, held not
Where a criminal trial consumed several days, not contain the pumes of those who, in the reversible error to state to the jury the desiraregular organization of juries for that week, bility of coming to a verdict.-Myers v. State were summoned to take the place of some on the venire for the week of trial who were un
(Fla.) 275. able to serve.-Johnson v. State (Ala.) 951. Declaration by judge that one witness has It is not error in a homicide case to clear error, where made in a statement for the ben
sworn specifically to the crime held harmless the court room on the occurrence of applauseefit of "accused.--State v. Watkins (La.) 10. on the part of spectators.-Lide v. State (Ala.) 933.
Jury in criminal cases are judges of the law A failure until after verdict to except to an
and the evidence.-State v. Watkins (La.) 10. omission or refusal of the court to sign the The jury are the sole judges of the weight instructions, as required by statute, is a waiv. of the evidence and the credibility of the witer of such requirement.--Easterlin v. State nesses.--State v. Washington (La.) 638. (Fla.) 350.
$ 17. Necessity, requisites, and sufIt is in the discretion of the court to allow
ficiency of instructions. prosecution or defense, after close of the evi
Where the evidence against accused showed dence, to bring in additional testimony.--State a positive confession by him, it was not error v. Sims (La.) 71.
to refuse instructions that the evidence was It is within the discretion of the trial court, circumstantial.-Hannigan v. State (Ala.) 89. after verdict and motion in arrest of judgment,
An instruction, on a prosecution for homicide, to order the minutes to be corrected to correspond with the facts in the case.--State v.
as to the fraudulent simulation of evidence to
sustain an alibi, held proper.--Tatum v. State Bouline (La.) 885.
(Ala.) 369. Misconduct of sheriff in calling to bailiff hay
Where, on a trial for gaming at a public ing charge of the jury that, unless they return; place, defendant requests a charge which hyed a verdict at once they would be held until pothesizes facts not in evidence, and charges a following day, held to warrant a reversal.- that, if the playing was done under such facts Shaw v. State (Miss.) 209.
and circumstances, the jury must acquit, the $14. Objections to evidence, mo- (Ala.) 333.
request should be refused.-Cartiledge v. State tions to strike out, and exceptions.
If any juror is not convinced of defendant's A general motion to exclude evidence, part guilt beyond all reasonable doubt and to a of it competent, held properly overruled.--Da- moral certainty; he cannot convict.-Fletcher vis v. State (Ala.) 509.
v. State (Ala.) 561. Objections to evidence must be made when fendant was entitled to have given.-Davis v.
A charge on reasonable doubt held one deit is offered.-Purdy v. State (Fla.) 229.
State (Ala.) 569. Where witnesses on behalf of the state ohject to answering questions on the ground that
A charge to acquit if there was reasonable their answers would criminate them, but were doubt of guilt in the mind of either juror held required to do so, objections on the part of de properly refused.-Davis v. State (Ala.) 569. fendants to the evidence for the first time on Requested instructions held to give undue motion for new trial comes too late.-Purdy v. prominence to testimony of a witness, and to State (Fla.) 2:29.
be argumentative.--Wells v. State (Ala.) 572.
On a prosecution for selling spirituous liq- Where accused asks for instruction, correct nors near a church, an instruction held er-only under exceptional state of facts, he must roneous as giving undue prominence to a par- bring it within such state.-State v. Collette ticular fact.--Winter v. State (Ala.) 717. (La.) 73.
On a prosecution for selling liquors near a Where an instruction has already been subchurch, certain instruction held erroneous as stantially given, there is no error in refusing argumentative and confusing.-Winter v. State it.-State v. Cain (La.) 300. (Ala.) 717.
An instruction substantially covered in the An instruction as to reasonable doubt held general charge was properly refused.-State , erroneous.- Thompson v. State (Ala.) 725. Sims (La.) 645.
A requested charge that a reasonable doubt $ 19. Objections to instructions or is a doubt for which a reason may be given
refusal thereof, and exceptions. is properly refused.-Thompson v. State (Ala.) Where refusals to give several instructions 725.
are embraced in one general exception, it is In prosecution for murder, certain instruc- not available, if any one of such charges is tions postulating an acquittal on self-defense properly refused.-King v. State (Fla.) 254. held properly refused argumentative.- To challenge the correctness of a legal propoCampbell v. State (Ala.) 802.
sition involved in a charge, it is sufficient to In homicide case, certain charges held prop. to say that it is not a legal charge.-State F.
point out the particular part objected to, and erly refused as unintelligible.-Adams v. State (Ala.) 851.
Weston (La.) 383. In homicide case, certain charges held prop
To challenge the correctness of a charge beerly refused as misleading.-Adams v. State cause of its inapplicability to the facts, or be. (Ala.) 851.
cause it does not state the law with sufficient
fullness, the respects in which it is_deficient A requested instruction in a prosecution for must be specified.-State v. Weston (La.) 3S3. assault and battery held erroneous as being argumentative.-Walkley v. State (Ala.) 854.
Exceptions to the charge of the judge must
be made when the charge is given, and a bill A requested instruction held erroneous as au- of exceptions be then taken.-State v. Harris thorizing an acquittal on the existence of rea- (La.) 782. sonable doubt of defendant's guilt of a crime not charged in the indictment.-Stewart v. $ 20. Verdict. State (Ala.) 944.
Where a jury in a homicide case returns a A reasonable doubt may exist, though the der in the first degree, and fixing "the punish
verdict finding the defendant guilty of murevidence is insufficient to show a probability ment lifetime in the penitentiary." it is not erof innocence.-Stewart v. State (Ala.) 944.
ror to instruct the jury to correct their verOn trial for homicide, it was not error to dict to read at imprisonment in the penitenrefuse an instruction stating that, if the prose- tiary for life,” if such is their intention. Lide cution had failed to prove defendant's guilt v. State (Ala.) 953. beyond a reasonable doubt, the jury should On an information charging one with having find him not guilty; defendant's own evidence shot the prosecuting witness with intent to kill, showing that the homicide was committed by and the other with having aided the first des him.-Johnson v. State (Ala.) 951.
Tendant, a verdict of "guilty with intent to kill" Under Rev. St. 881091, 2920, instructions was insufficient, as failing to set forth the eleneed only be in writing and signed by the ments of the crime.-State v. Washington (La)
638. judge, but need not be sealed by him.-Denmark v. State (Fla.) 269.
Jurors are not competent as witnesses to imAn instruction as to the value of circumstan- peach their verdict.-State v. Perioux (La) tial evidence held proper.-Myers v. State (Fla.)
8 21. Motions for new trial and in arAn instruction that if the guilt of the prison
rest. er is to be established by circumstantial evi- A new trial for newly-discovered evidence dence, and the jurors have a doubt of any one will be granted only where the eridence has of the circumstances showing guilt, that one been discovered since the trial, and due dilishould not be considered in making up their gence to procure it at the trial was shown, and verdict, is erroneous.-Myers v. State (Fla.) 275. it was material, and went to the merits, and An instruction that the doctrine of reason: opposite result on another trial.-Mitchell v.
was not cumulative, and ought to produce an alle doubt applies to each and every incident State (Fla.) 242. of the case held too broad.-State v. Watkins (La.) 10.
Rev. St. & 2851, prohibiting a grand juror to
serve as a member of a trial jury to try an inIt is unnecessary for the court, on its own dictment found by him, being expressly made motion or on request, to instruct as to the
conditional on a challenge by the defendant lower grades of crime involved, when there is for that cause, ä grand juror is not absolutely no evidence on which to base such instruction. -State v. Fruge (La.) 323.
acceptance by the
defendant without exercising this right of chal. Indefiniteness in instructions of court held lenge, an objection after verdict is too late.harmless, in view of charges given at defend- Denmark v. State (Fla.) 269. ant's request.-Arbuckle v. State (Miss.) 437.
Errors in the course of a trial cannot first be In a prosecution for murder, an instruction objected to on a motion for a new trial.--State held misleading as intimating that defendant v. Slutz (La.) 179. did the killing.-Gee v. State (Miss.) 792.
The objection, on motion for a new trial, that
the information informed the jury that there $ 18. Requests for instructions.
had been a previous trial and couriction, and Instructions containing propositions already new trial granted, comes too late.-State r. substantially given are properly refused.-My Gonzales (La.) 626. ers v. State (Fla.) 275.
A new trial granted on defendant's motion Where any one of several charges requested reopens the whole case and disposes of the by counsel is wrong, the whole may be refused. plea of autrefois acquit.--State v. Washington State v. Watkins (La.) 10.
Motion in arrest of judgment, where the de- Final septence, from which time to take out fendant arerred. without reference to any rul. au appeal runs, as to the state, means final ing, that prejudicial errors had been commit. action quashing the indictment or putting an ted, held properly disregarded.-State v. Bou end to the prosecution.-State v. Barranger line (La.) 885.
(La.) 13. Where the object of newly discovered evi- Prior to taking out an order of appeal, delay dence is to discredit a prosecuting witness, a begins, as relates to defendant, from the day new trial will not be granted.--State v. Young the final sentence is passed.--State v. Barranger (La.) 993.
(La.) 13. Testimony of jurors, on motion for new trial, Appeals in criminal cases from justice court that conduct of sheriff, in calling to bailiff hav- under Code, $882, 84, 86, held returnable at ing them in charge that, unless they returned the next term after the appeal bond is filed.a verdict at once, they would be held until Ex parte Grubbs (Miss.) 741. a following day, induced an immediate verdiet, held admissible to impeach the verdict.-Shaw 8 26. Record and proceedings not v. State (Miss.) 209.
Where defendant's objections to questions $ 22. Judgment, sentence, and final were overruled, it is no ground for reversal uncommitment.
less the bill of exceptions shows that the quesIn a sentence, it is unnecessary to say, “It tions were answered and what the answers is hereby adjudged and decreed that," etc.-- were.-Cartiledge v. State (Ala.) 553. State v. Slutz (La.) 179.
General objections to questions, without stat$ 23. Appeal and error, and certiorari. ing the precise ground thereof, will not be
Where a single general assigninent embraces considered on appeal.-Mitchell v. State (Fla.) refusals to give more than one instruction, if 242. any one of the several instructions was er- Refusal of severance in a criminal case will roneous, the assignment will not be considered. not be reviewed, where the facts of the case -Easterlin v. State (Fla.) 350.
are not in the record.-State v. Watkins (La.) Where a charge is assigned as error, and the 10. assignment is not entirely abandoned, but is
Failure to file transcript of appeal within 10 insisted upon in the briefs in good faith, though days after order granted held fatal to the apthe real ground on which it is erroneous is not peal.-State ř. Barranger (La.) 13. clearly pointed out, the court will reverse the judgment, where such instruction is erroneous
Testimony in transcript will not be noticed, and prejudicial.-Easterlin v. State (Fla.) 350. unless it comes up as part of a bill of excep
tions.--State v. James (La.) 4. Judgment of a court having jurisdiction of a criminal prosecution held conclusive, while it
Testimony must be copied into the bill of exremains the judgment of the highest court vest-ceptions, or, if detached therefrom, must be reed with such jurisdiction.-State ex rel. Wynne ferred to in the bill and specifically made a v. Lee (La.) 14.
part thereof.-State v. James (La.) 44. Where a fine does not exceed $300, and im
Joint trial on a joint indictment held not erprisonment does not exceed six months, the ror, where no objection was made.--State v. supreme court has no jurisdiction of an appeal. Sims (La.) 71. -State v. Pitre (La.) 133.
Bill of exceptions must make such a stateUnder Const. art. 85, the jurisdiction of the ment of the facts complained of as will show supreme court in criminal cases is confined to error.--State v. Smith (La.) 132. questions of law alone.-State v. Burton (La.) An exception to the method by which an ob291.
jection is saved must specify the particular Where a city has failed to show due publica- finding objected to.--State v. Pitre (La.) 133. tion of an ordinance, and it is apparent that The record on appeal must contain a trancompetent evidence was obtainable, the case script of so much of the testimony as will enwill be remanded on appeal by the other party able the court to determine whether an error to enable the city to produce such evidence. has been committed.--State v. Pitre (La.) 133. ---Pucheu v. Town of Jennings (La.) 864.
A bill of exceptions to the overruling of a mo$ 24.
Presentation and reservation tion for a new trial, merely reciting the moin lower court of grounds of tion, its overruling, and the reserving of a bill, review.
is insufficient.--State v. Slutz (La.) 179. Exceptions to the conduct of jurors in a Where challenge to a juror by the state for criminal case, where no ruling of the trial cause is sustained, the accused has no ground court is asked or had, do not present any ques- of complaint where he had not exhausted his tion for review on appeal.--Sanders v. State peremptory challenges.-State v. Harris (La.) (Ala.) 361.
646. Objections to instructions, urged for the first A ruling excluding certain evidence as irtime on motion for new trial, will not be con- relevant will not be disturbed, where there is sidered on appeal.-State v. Weston (La.) 383. nothing in the bill of exceptions showing the
Failure of record to show arraignment and connection necessary to prove its relevancy.-plea held not subject of complaint for first time State v. Harris (La.) 616. on appeal.- Arbuckle v. State (Miss.) 137.
A bill of exceptions held to be accepted as So far as Code 1892, $ 4370, provides that true, and effect given to it.-State v. Guy (La.) failure of the record in a criminal case to show
1012. jurisdictional facts is not ground for reversal,
$ 27. Review. in the absence of objection below, it exceeds the power of the legislature. -Arbuckle v. State cuit court on defendant's appeal from a con
Under Cr. Code, Š 4627, the trial in the cir(Miss.) 137.
viction in the county court is de novo and on $ 25. Proceedings for transfer of the solicitor's statement setting forth the cause cause, and effect thereof.
of complaint, and the action cannot be abatA writ of scire facias ad audiendum errores,
ed by anything, occurring on the trial in the issued on a day within pending term of appel county court.-Boyett v. State (Ala.) 551. late court. and returnable within the same term, The service on the defendant, charged with gires no jurisdiction over the person of the de- murder, of a full list of the jurors summonel. fendant in error.--Preston v. State (Fla.) 316. is a suflicient compliance with Code, § 5273,
requiring the service of a copy of the venire, one side or the other of the middle as thus
General allegations as to errors of law, and
found by the jury, will not be considered on
On certiorari to review a conviction for riola-
he reviewed on the ground of the insufficiener
Defendant, who exhausts his peremptory
challenges, is in a position to complain of ti-
The erroneous admission of erideuce, in 1
penalty for the illegal sale of liquor, held, un-
der the evidence, not to warrant the reversal
See “Trial," § 2.
CUSTOMS AND USAGES.
Admissibility of evidence as to employer's cus-
tom as to employment of servants, see "Mas-
ter and Servant," $ 1.
able cost, will not be adopted by the court.-
Sully v. Pratt (La.) 161.
An owner, not apprised of a schedule of char.
use, see “Eminent Domain," $ 2.
vival," $ 2.
Damages for particular injuries.
riers," $ 3.
Mental anguish arising from nondelivery of
message, see “Telegraphs and Telephones"
see “Corporations," $ 5.
Wrongful discharge of servant, see “Master
and Servant," $ 1.