The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1879-05-03

RICHMO ii. OND',, va Va
to show ihe grade oi the offence. Haynes ss,l Is
State, II 6x., 486, eiiediin L hrcht Cr.Pr.t
FL. S97. Again 8 Mr. Stephen; says,fa fart. 9
p. i4) "Facts. whether In issue or:not, ar
relevant to each ether. when one is, or pre-
bab1y may be, or pro baby may. have been
the cause OF the other, the effect of tfr
other; an effect of the same scause,la cause
OF the same effect 81. .@.ess gS.ist :afsiI y
rs Can 1t be said TINT the kilIing,in this cas,
.wds, not, the probable effect OF which .tht
previous ehorsewhippiDg was -the' cause.
There are SO MANY cnses in which eyidenc.
.of former occurrences have been admitted
under one or the other OF a,i,;i .o4
THESE THREE HEADS,
that il is impossible to comment on or ever
refer TO them within The limits OF this opfn.
.ion.,.. For some OF them, zee ReX vS. Ellis
13 f.. G. Z. Rep, 1873; La Bean Us. People
"a N. Y, 223; Pitman Us. State, q Ark.
1854; State u.s., Wentworth, 81 n. f., 1876
State Us. Rash, IL Iredell, :3s2; johnson Us,
State, II Ala. Stewart Us. Stste, Ohio st.,
&c; State Us. Neeley, 20 Iowa, 379; Isaacs
Us. State, 25 Texas, l74s; Bristow's" Case,
i15 !Gfattan; McWhirt's Case, Grattan;
Heath'ss Case, Rob-. And when we re.
mem befs4Is before stated, that In this case
the foundation for the adnissibility Of the
evidence OF the previous assault was laid
by the statements or the prisoner to the
witness Lyoua It seems to me that the EVIL
dence OF what occurred at that assault be-
comes. admissible on the highest grounds
recognized by tbelfules OF evidence. ~. }
Yyso ,sSffo I,a
only three cases cited BY the .s-:
COUNSEL FOR. Tng4CcusED.
They, are First, People Us. Smith, 26tll
Call, Cos, ih which is held that If two per-
sons have a quarrel and fight, and after
an interval OF six hours one OF. them seeks
The other, forces contest, and takes bis life,
and is afterwards indicted for murder, lie
cannot in defence Introduce evidence of the
first quarrel as part foi the res gestde. But
While the Court says the accused cannot in-
troduce the evidence OF The first fight as part
OF the res gestae, it closes its opinion with
this language: .sUnder all the circum-
stances, we think it is little surprising that
the district attorney did not prove the first
fight for the purpose Of showing q grudge
and deliberate revenge on The part OF the
defendant and had he done so it is more
than probable that the verdict would have
been for murder in the first degree instead
OF the second." In the case at bar evil
dence Of the first fight was introduced by
the Commonwealth, as the case cited clearly
holds it might have done in that, where there
Was no evidence even tending to
: CONNECT THE TWO FIGHTS,
and where there was an interval between
them OF six hours, while in this case the
interval was only two hours. The next case
is that nf Rawlings Us. Commonwealth, l
Leigh, 59l, in which it was held that on a
trial Of an Indictment for an assault the de-
fendant could not, in mitigation OF the fine,
offer evidence that the prosecutor was on
bad terms with him, and had on days pre-
yious to the assault used provoking and
abusive language oi and to him. But the
Court says in that case that if the prior pro.
vocations we're so recent as fairly to be con-
sidered u part OF the SAME transaction, then
evidence Of it would be admissible, and
ssthat this rule is adopted in analogy to the
one which prevails in cases OF homicide" !"
The third case is -Rosenbaum Us. State, 3GG
Ala, 354, in which it was held that on an
indictment for an assault and battery the
prisoner cannot be allowed to prove what
took place between him and the prosecu-
tion at a previous
-. INTERVIEW IN THE FORENOON =.
OF the same day, which is too far removed,
in point Of time, from the actual engage
ment, to constitute part Of the res, gestae.
Because, says the Court, that evidence
could not qualify or mitigate the breach Of
the peace OF which the public complained.
1t nowhere intinates that il the two trans
actions were connected that evidence Of
one could not be introduced on the trial OF
the other to explain or mitigate the other. 1t
seems to me, however, that complete an
swer 10 these two last cases is the fact that
they are prosecutions for, simple breaches
OF the peace, while the case at bar is for
murder that the ingredients of the two
crimes are so. essentially different that the
nature or. kind OF evidence adducible.en the
trial OF tho two must. er 7aeceSSitGte rel be
very different. .. ;, ' .'''.''H .'.' 81.
This disposes OF all the casesswhich the
abisityan Industry Of counsel for the de
fence have referred me to in support of their
views on this ground, and, as before stated,
- =: II SEE NOTHING IN. THEM ~, ........
in conflict with the adlnisslbility Of the eyi-
dence objected to, which is supported by AN
Irresistible array Of authority. a'1 !. =
E., 1t will be observed, however, from the
form OF the objection taken by the counsel
for the prisoner, that BY a general objection
to the whole evidence OF Carlton and others
they seek To- take advantage of any objection
that may exist to any particular portion OF 1t
without at the time pointing out their OBJ
iection,i and If thelGCourt should decide
against tbem, excepting thereto. Il appre-
hend that this cam be done in this way.
For9 where an obiection is taken to eyi.
,dence,th counsel must call The attention
OF the, Court to: the particuiar,portie to
which they. object, and II the iobieetfon is
to the Whole" evidence Of f1R,wGtpesst most OF
which is unohiectionable, the, objection will
20 for nothiug.' II Phil. .bn, Ev. 619, Keller
rvs.; New York Central Raiiroad ,Eompany,
a. How, Pr. 172; Daniels. Us. Patterson, 8
,Comst.. At; Elwell, pS, Dodge. SO Barb, 336,
343; Murphy Us. State, 81 Ala, 143,, and
'Trbgden's case, Sd Virginia Law, Journal,
2o.1 - go - " :
The Law and Evidence.
The second ground assigned For, abe mo-
,tfon is that {. the verdict is contrary to the
law and the evidence" In criminal trials
the Jury are judges both of the. law and the
evidence. In this case no instructions were
asked, and none were given by the Court,
and cannot say that the verdict is contrary
to the law. In Ross. Us: OVerton. Sd Call,
3O9. Judge Roane has laid down the rule ii
regard to granting new trials on the ground
that the verdict is contrary to the evidence
and he says they sought to be granted only
in a case OF plain deviation, and not in :
doubtful one, merely because the Court; !