# Goldsby v. United States

Supreme Court of the United States
160 U.S. 70
GOLDSBY, alias CHEROKEE BILL, v. UNITED STATES
Error to the Circuit Court of the United States for the Western District of Arkansas
No. 620. Argued: Oct. 21, 1895 --- Decided: Dec. 2, 1895
There is nothing in this case to take it out of the ruling in Isaacs v. United States, 159 U.S. 487, that an application for a continuance is not ordinarily subject to review by this court.
In the trial of a person accused of crime the exercise by the trial court of its discretion to direct or refuse to direct witnesses for the defendant to be summoned at the expense of the United States is not subject to review by this court.
Moore v. United States, 150 U.S. 57, 61, affirmed and applied to a question raised in this case.
While it is competent, if a proper foundation has been laid, to impeach a witness by proving statements made by him, that cannot be done by proving statements made by another person, not a witness in the case.
It is within the discretion of the trial court to allow the introduction of evidence, obviously rebuttal, even if it should have been more properly introduced in the opening, and, in the absence of gross abuse, its exercise of this discretion is not reviewable.
Rev. Stat. § 1033 does not require notice to be given of the names of witnesses, called in rebuttal.
If the defendant in a criminal case wishes specific charges as to the weight to be attached in law to testimony introduced to establish an alibi, he may ask the court to give them; and, if he fails to do so, the failure by the court to give such instruction cannot be assigned as error.
THE plaintiff was indicted on the 8th of February, 1895, [p71] for the murder of Ernest Melton, a white man and not an Indian. The crime was charged to have been committed at the "Cherokee Nation, in the Indian country, on the 18th day of November, 1894." Prior to empanelling the jury, on the 23d of February, 1895, the accused filed two affidavits for continuance until the next term of court. The first, filed on the 12th of February, 1895, was based on the ground that for some time prior to the finding of the indictment the defendant had been in jail, was sick, and unable properly to prepare his defense, and that he was informed, if further time were given him, there were witnesses, whose names were not disclosed in the application, who could be produced to establish that he was not guilty as charged. This was overruled. The second was filed on the 22d day of February, upon the ground that four witnesses, whom the court had allowed to be summoned at government expense, were not in attendance, and that there were others, whose names were given, who could prove his innocence, and who could be produced if the case were continued until the next term of court. The affidavit made no statement that the four witnesses had been actually found at the places indicated, and gave no reason for their non-attendance, and asked no compulsory process to secure it.
Before the trial the accused filed three requests for leave to summon a number of witnesses at government expense. The first was made on the 12th of February, and asked for twenty-five; the affidavit made by the accused gave the names of the witnesses, and the substance of what was expected to be proven by them. The court allowed fifteen. Of the ten witnesses disallowed, two were government witnesses, and were already summoned; seven were the wives of witnesses whom the court ordered summoned, the affidavit stating that the husband and wife were relied on to prove the same fact. The other witness disallowed, the affidavit disclosed, was also relied on simply to corroborate the testimony of some of the witnesses who were allowed. The second request was made on the 16th of February, asking for six witnesses, all of whom were ordered to be summoned. The third request was made on the 19th of February for two additional witnesses, one Harris and wife. [p72] This application was refused, both being government witnesses.
On the trial the uncontradicted testimony on behalf of the government was that at about noon, on the day stated, two men robbed a store at a town in the Indian Territory, and that during the course of the robbery the murder was committed by one of those engaged therein. The testimony for the prosecution tended to identify the accused not only as having been one of the robbers, but also as being the one by whom the murder was committed. The testimony for the defense tended to disprove that of the government, which identified the accused, and tended, moreover, by proof of an alibi, to demonstrate the impossibility of the offense having been committed by him. There was a verdict of guilty as charged. The defendant brings the case by error here.
Mr. William M. Cravens for plaintiff in error.
Mr. Assistant Attorney General Whitney for defendant in error.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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