Overton v. State

• Decision Date: 22 April 1912
• Citation: 58 So. 219,101 Miss. 607
• Court: Mississippi Supreme Court
• Parties: LAMBERT OVERTON v. STATE

58 So. 219

101 Miss. 607

LAMBERT OVERTON v. STATE

Supreme Court of Mississippi

April 22, 1912

March 1912

APPEAL from the circuit court of Lauderdale county, HON. JNO. L BUCKLEY, Judge.

Lambert Overton was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

McBeath & Miller, for appellant.

While the assignment of error contained ten grounds, we shall rely upon only two for the reversal of this case.

First the court refused to consider more than twelve instructions for the defendant, giving as a sole reason that the instructions presented were a greater number than twelve. Among the instructions asked for was one that the jury was the sole judge of the evidence. But the court stated that while this was the law, he gave as the reason for refusal that he had already given twelve instructions and he would not consider any more.

In the matter of involving the life and liberty of an accusd we submit that any such arbitrary ruling is unwarranted and illegal. Notwithstanding the fact that the circumstances might be such that for a counsel to properly place his case before the jury, that it would require more than twelve instructions. Yet the court in total disregard of appellant's rights refused to instruct the jury as to the law.

"We recognize that trial courts have a right to regulate the mode of procedure in their courts, but we do not believe until sanctioned by this court that a trial judge in a case involving the liberty of an accused has a right to arbitrarily say that, When you have asked twelve instructions I will not consider any more."

In the second place this case should be reversed because the learned judge refused to grant a new trial on account of newly discovered testimony.

The rule laid down by all courts for the granting of a new trial on account of newly discovered evidence, is about the same, and is clearly stated in the case of Gilbert et al. v. State, 55 So. 464, in which it is held that new trials will be granted only under the following restrictions.

First. The evidence must have been discovered since the former trial.

Second. The party must have used diligence to procure it on former trial.

Third. It must be material to the issue.

Fourth. It must go to the merits of the cause and not merely to impeach the character of a witness.

Fifth. It must not merely be cumulative.

Sixth. It must be such as ought to produce on another trial an opposite result.

We submit that the instant case comes under those restrictions.

No one but a mind reader could have known in advance of the trial that witnesses, whose names did not appear on the indictment and whom we contend were not present at the difficulty, would swear that they saw the difficulty that resulted in Hardy's death.

That the evidence is material to the issue needs no argument. Five witnesses swear that the state witnesses, upon whose evidence appellant was convicted, did not see the difficulty. This is not only material but if the jury should believe them, the verdict would have been one of acquittal.

The newly discovered evidence goes directly to the merits of the case and is no attempt to impeach the state witnesses, but is a direct and flat contradiction of their testimony.

The newly discovered evidence is not cumulative. There was no evidence introduced by the defendant to show that the state witnesses Allan Hardy and Derby Hardy were not present. In the case of Williams v. State, 54 So. 857, this distinction is made between cumulative and corroborative testimony. And in this case Judge Anderson says:

"It is undoubtedly the rule that courts will grant with great reluctance new trials founded on newly discovered evidence; especially when such evidence is merely cumulative or which simply tends to impeach the testimony of one or more witnesses who have testified; but where the newly discovered evidence is corroborative, the rule is not enforced with the same strictness as when it is merely cumulative."

In the case of Railway Co. v. Crayton, 69 Miss. 152, 12 So. 271, the distinction between corroborative and cumulative evidence is clearly stated.

In Barrentine v. State, 51 So. 275, Judge Smith says: "Appellant's newly discovered evidence was material and vital to his defense, and its existence was unknown and unsuspected by him or by his counsel until after the trial in the court below. His motion for a new trial, therefore, ought to have been sustained.

W. W. Venable, district attorney Tenth district, for appellee.

In the first place, the record does not disclose what instructions were asked and refused on the ground that they constituted a greater number than twelve and in fact the record is silent upon the question of instructions, other than those set forth as being given or refused with the exception of a recitation in the bill of exceptions that the court refused to consider certain instructions on the ground that twelve had already been granted, and that it was a rule to grant only twelve. The record fails to show that appellant presented these instructions and had them marked "refused" and "filed;" they do not appear in the record and have not been made a part thereof and, even if it be, which we do not admit, that the court arbitrarily refused to mark them in any manner or to consider them in any wise,...