People v. Dennis

Sprague, J., delivered the opinion of the Court, Wallace, J., Temple, J., and Rhodes, C. J., concurring.

The transcript in this case consists of two hundred and twelve legal cap manuscript pages, without an index or any reference to its contents attached thereto, nor do the points and brief of counsel for appellant make any intelligible reference to the page or pages of the transcript upon which matter objected to can be found. This mode of presenting transcripts in criminal cases imposes much labor upon this Court, and is in direct violation of our Buie 5. Counsel who bring cases here on appeal are expected to conform to our rules. ' The gross negligence of counsel for appellant in this case, in presenting such a transcript, and a correspondingly incomplete brief, merits severe censure.

We have examined with care all the evidence and all the instructions given and refused by the Court, as presented by the record.

The error alleged in defendant’s first point is not well taken. The question objected to was proper in itself, but, if otherwise, the answer thereto could not have prejudiced the defendant.

The objection to the question embraced in defendant’s second point was properly overruled. The prosecution were entitled to an answer to the question, it being on cross-examination of the defendant as a witness in his own behalf respecting an occurrence about which he had testified in chief: First—For the purpose of showing express malice; and, Second—For the purpose of laying a foundation to impeach his credibility.

The objection to the question embraced in defendant’s third point should have been sustained, but, as no answer [635]was given to the question, the error was immaterial and could not have prejudiced the defendant.

Defendant’s fourth point is not well taken. The evidence in chief on the part of the prosecution had been strictly confined to acts and declarations of defendant and deceased, Belt, and others who were present at the time of the homicide. No evidence Avas introduced of matters occurring at any other time or place, or of any previous hostile feeling on the part of defendant against deceased.

The evidence on behalf of defendant, including his own testimony, had taken a very wide range, covering a space of over four years, and tended to establish that during all this time a most hostile, vindictive feeling had been entertained and indulged in by the deceased toward defendant; that deceased had threatened to kill defendant, and on one occasion, five years before his death, according to the testimony of defendant himself, would have taken the life of defendant but for Avant of a percussion cap on his pistol. No evidence had been offered or introduced on the part of the prosecution in the first, instance tending to show express malice on the part of defendant, except his declarations at the time of and immediately in connection with the homicide or shooting of deceased by him. Under these circumstances the Court, after defendant had closed his evidence, was fully justified in permitting the prosecution to introduce evidence tending to rebut the evidence in behalf of defendant as to the state of feeling existing during this time on the part of deceased toward defendant, and further tending to establish a hostile, vindictive feeling indulged and entertained continuously, for several years before and up to the day of the homicide, on the part of defendant toward the deceased; and also any threats which defendant had made against the life of deceased, for the purpose of showing express malice. The point and character of the evidence introduced by either the defendant or the prosecution, in rebuttal, quite as explicitly as any suggested by the party, fur pish to the Court reasons for allowing either party, after having once closed his evidence in chief, to offer evidence upon their original cause under Section 362 of the