Gavan v. Ellsworth

McCay, Judge.

1. We do not think it was error in the Court to refuse the continuance. Necessarily continuances must vest largely in the discretion of the Court, and the facts in this case show the propriety of the rule. Evidently the Judge was led, from, the contradictory statements made in the showing, to discredit it, and to think the motion to continue a mere pretext for delay. We cannot say he was not justified in this conclusion. He was an eye witness and ear witness of what took place, and there is enough of the scene transmitted into the bill of exceptions to make us suspect more.

2. As we understand the bill of exceptions and the Judge’s certificate, the thing complained of in the ruling of the Court as to the witness, Weaver, was no error. Weaver had been examined, and in the course of his examination had stated Edwards was dead. The plaintiff, in the progress of his case, offered to prove what Edwards swore on the former trial; the defendant asked that he be allowed to to recall Weaver and cross-examine him as to his statement of Edwards’ death. This the Court refused. We do not think this was wrong. The Court distinctly stated that he did not refuse to permit defendant to introduce evidence on the question of Edwards’ death. The point was, that he refused to permit defendant to recall plaintiff’s witness to cross-examine him as to a fact stated by him in his direct testimony — and this was right. It would be improper for this Court to interfere with the discretion of the Court below in the conduct of a cause on such a point. But we concur with the Judge. The defendant had his opportunity to cross-examine the witness, and if for any cause he saw fit not to go into a question, he must take the consequences.

3. There are some facts stated in the bill of exceptions, which, in the view we take of this record of the evidence of Edwards’, present matter of which the defendant might justly complain. We think the proper source from which to get Edwards’ testimony was the memorandum of it, as taken down under the direction and supervision of the Court, and not Mr. Spencer’s short-hand notes, however correct they may have been. But it does not appear from the bill of exceptions that this objection to Spencer’s testimony was made. He was objected to, 1st, because Edwards’ death was, as it was claimed, not proven, but this was abandoned; and, 2d, because the trial was not of such a character as made Edwards’ testimony in that ease evidence in this, and also for some supposed defect in Spencer’s memorandum and mode of testifying. But there was not, as appears by the bill of exceptions, any objections on the ground that the memoranda of the Clerk was the best evidence. We do not therefore go into this question. Were the point distinctly made we should hesitate to sustain the Judge, though much might be said in favor of the judgment if he had so adjudged. Spencer was himself one of the Court, and he states that he recollected the facts independently of the notes.

4. We think the authorities are in favor of the rule adopted by Judge Hopkins, in this case, on the admissibility of Edwards’ testimony, on the former trial. The defendant was a party; the issue was the same. Our Code, section 3729, provides that the testimony may be used, if the parties be substantially the same, and the issue substantially the same. It seems to us that the facts here make the case put by the Code. The issue is precisely the same, except that, in the criminal trial, the intent of the defendant was more prominently matter for consideration than here. And the parties were, for this purpose, substantially the same. The defendant was there in propria persona, and the plaintiff — the injured party — represented by his protector, the State. The authorities seem to make the matter turn upon the opportunity for cross-examination. This the defendant, against whom the testimony is now offered, had fully,on the commitment trial; See 1 Greenleaf Ev., sections 163 to 167. See, also, United States vs. McComb, 5 McLean, 286.

5. The verdict of the jury is not such as will justify this Court in interfering with it, over the judgment of the Circuit Judge, affirming it. The witnesses were seen and heard by the jury. Their character and antecedents appear in their testimony. It was a case peculiarly within the province of a jury, and we will not disturb it.

Judgment affirmed.