The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1907-06-28

that she had been drugged and ilshon-
ored by tho deceased which assault on
his daughter by the deceased occurred,
according to her statement, during
buggy drive on Intervening before; Shat
he was SO overcome by tho shock of this
intelligence of this gross provocat!or on
the part OF the deceased, that 1he tmme-
tlately armed himself with q shotgun,
went In pursuit of tho deceased and
Loving, the prisoner, and Elizabeth Low
ing, his daughter, have testified to the
interview between them, and Elizabeth
Loving has detailed tho incidents of said
ride with Theodore Estes. the deceased,
testifying that he drugged her and at
tempted to assault her. that she tried to
scream. but that he placed his hand
over har mouth; that she became un-
ton of subsequent events. until after
she was put to bed In Mrs. Kidd s house.
And tho prisoner offered expert and
othor evidence tending to prove that at
tho time OF the homicide that he was
not responsible for his acts. The Com
monwealth offered to introduce Eundry
and to. prove that Theodore Estes, the
other improper conduct towards her, and
that the statement made by her to her
father was in point of fact untrue.
To the Introduction ofZthis testimony
the kprisoner objected, and the question
for the court to decide Is as TO the
right of the Commonwealth to Introduce
this rebuttal testimony.
For the Commonwealth 1t is insisted
that the tragedy under investigation
grew out of the buggy ride. and that all
the light possible should be turned on
/ this occurrence, and that the jury are
Y entitled to every fact and circumstance
connected with it; that what occurred
than Is a part OF the res gestae. and a
such should he admitted az we'll for the
purpose of i:npeaching Miss Loving.
The prisoners contention Is that the
evidence sought TO be introduced Is not
part of the res ges'ae. relates to
collateral and immaterial issue. and that
its introduction would tend to divert the
minds of the jury from tho real Issue
OF the case. and that 1t is not compe-I
ton, for the court to inquire into The
truth or falsity of the statement made
by Miss Loving to her father.
In Greeneaf on Evidence. Vol. T..
page l36. section 10i. II is said:
This Lord Abnger says. II man
calls another liar and was knocked
down the plaintiff in an action for III"
battery would not be allowed TO prove
on tbs trial OF the Assault that The
defendant was really and in point OF
fact liar, because evidence OF provo
cation is admitted for the purpose of
showing that the feelings of the de-
feadant We're excited.
and in the 30th Am and Eng. Enc,
page 1902, 1t is said. that a test OF
whether matter inquired into on
cross contamination IS collateral TO the Is
sues. and therefore not subject to con-
iradction. which has been often APP
proved BY the courts is this; Would
the cross-examinne party be entitled
to prove this asa part OF his case. tend
ing 10 establish his pea?'" Certainly In
this case. 1t Will hardly be. commended
that the4cemrlonwpaItll could prove the
incidents of said ride as o. paStS.0f its
Gaze. N The, Enc OF Eyldspc Gee Vol VI,
page 7i5, under the head of Truth or
falslty OF Information or statement" 1t
is said: THE truth or falsty OF the
matters Information concerning which Is
the alleged provocation, II Is not ma
terial and cannot ba shown, except to
corrobpcate the defendants own tcsti-
mony. The state cannot show the truth
Of AN insulting charge or statement by
tho deceased but the defendant may
prove its falslty. because this fact would
Increase i.B provoking effect"
In the case OF Massie- vs.. Common
wealth, 2sth s., ". Rep page ST..
James Wanna onethe day of the killing
informed MassIe that Honaker had told
him tiIanna). that Mass'e had improper
relations with his cousin, Immediately
aft1r hearing that communication, Mas
SIC seized his gun. got. on his horse,
and in a state OF great rage ana excite
ment went In search of Honaker riding
| a great rate OF speed. and killed him.
In that case tho court held that ut
was competent to prove that Honakcr
| made the charge, and that Hanna COM
| fnunicated The fact 10 Nassie, because
| bearing materially upon tho question o!
;. whether no WAS guilty II at all, OF muir
| dor or manslaugh,cr, but 1t was wholly
/ lnlniatcr!al whether the charge was
! true or false, or whether Hanna as
Bcnted 70 tho truth OF It, and no In
4 qutrF as 10 either fact should have beer
permitted by the court: for II IS easy &c
I perceive how Introduction OF ouch r.
relevant testimony would prejudice the
minds OF the jury and induce them tc