zir. TERM, 1856. Moss V. STATE. act (see Digest, page 367), for playing at, and betting upon, with his co-defendants, a "certain unlawful game of cards, commonly called "seven up," within the county of Prairie. At the August term, 1855, the defendant (appellant) appeared in court, interposed his plea of "not guilty," and was tried by a jury and convicted. No exceptions were taken at the trial, to auy ruling of the court. The appellant moved for a new trial, setting out the following causes, to-wit: 1st. "The cotfrt erred in refusing to permit the defendant, Moss, to introduce the said George A. Eagle, as a witness in his behalf, the said Eagle being indicted with the defendant, and not yet put upon his trial: 2d. The verdict of the jury is contrary to the law and evidence." The court overruled the motion for a new trial, and the appellant except-MOSS ed, setting out in his bill, his motion V.
for a new trial as above, and the following facts, which are represented as THE STATE. having been deposed to at the trial. One of several defendants in an indictment, still George Ewell, a witness introduced pending against him for the same offense, is not a by the State, testified, that some time competent witness for his co-defendant. This court will not set aside the verdict of a jury within twelve months, previous to the upon the weight of evidence. (14 Ark. 419; 13 Id. finding of the indictment in this cause, 285, 236, 712; 12 Ark. 43.) he was at the grocery of Mansel Stone, This court will presume in favor of the verdict in Prairie county, at night, and saw and judgment, where the bill of exceptions fails to state that all the evidence is put upon the record. the defendant (appellant) and the (7 Ark. 384; 8 Id. 429; 9 Id. 478.) other defendants named in the indict-Appeal frorathe Circuit Court of Prai-ment, playing a game of seven up at rie County. cards. One dollar was staked. Each one of the defendants bet twenty-Ave ON. JO EIN J. CLENDENIN, cents on the game, all of them playing H Circuit Judge. and betting at the same time. That Williams dz IT (Mama, for the appel-he, witness, thought, when he gave lant. evidence before the grand jury in this case, that George A. Eagle, who is in-Mr. Attorney- General Jordan, contra. dicted in the satire indictment with 3281 5 HANLY, J. The appellant the appellant, Moss, was in said game, was indicted in the circuit court of but since that time he had conclu-Prairie county, at the February term, ded from the "talk around," that 1855, with George A. Eagle, William lie might be mistaken, but sup-Whorton, and Michael N. 'Whorton, *posed he, Eagle, was in the [4'329 under the 8tli section of the gaming game, as stated before the grand jury.
MOSS v. STATE. VOL. 17 He was, however, not certain of this, new trial being overruled as'Above, and but gives it as his present impression. his exceptions filed and made a part of He further stated, that this betting was the reeord in the cause, prayed an ap-done in Prairie county. Did not rec-peal to this court, which was granted, ollect to have seen Mansel Stone pres-and he now asks to reverse the judg-ent when the game was going on. ment of the court below : 1st. The bill of exceptions states, that the • because Eagle was not allowed [e330 appellee"closed her testimony in chief" to testify in his behalf at the trial, and when the above-named witness had secondly, because the court would not concluded his evidence as above, and grant him a new trial ; averring that that the appellant, Moss, then called the verdict of the jury is contrary to Mansel (Stone as a witness in his behalf, law and evidence. who testified ; that, on the night that We will proceed to dispose of these the appellant, William and Michael N. assignments of error in the order in Whorton (who are included in the which they are respectively presented. same indictment) were at his grocery 1. Was Eagle a competent witness playing cards, when the witness Ewell for the appellant, under the facts and was there, he saw the playing ; that he circumstances which we have stated? was in the house waiting on them, and We hold he was not ; for it appears to saw no money on the table, or bet by any be a technical rule of evidence, and one of theparties ; that he had no person to well and firmly settled, that a party in attend to his house on that night, and the same suit or indictment, cannot be attended to the business himself, and a witnes for his co-defendant, until he did not believe there was any money has been first acquitted, or at least con-bet, but there might have been ; that, victed, and it seems, whether the de-at the time, and on the night alluded fendants be tried jointly or separately to, George A. Eagle was not in the does not vary or change the rule. It is, game, nor was he in the house, or on his being a party to the record that the premises. renders him incompetent, and the The bill of exceptions further states practice is, when nothing appears that the appellant "after the State had against one of the defendants, for the gotten through with all the evidence court to direct his immediate acquittal, on the part of the prosecution," offered so that the other defendants may use to introduce George A. Eagle, one of him as a witness.' See 1 Hale P. C. the defendants in this case, as a witness 306; Peake's B y ., 100, note ; 6 Term in his behalf, which was objected to by Rep. 623; The People v. Bill. 10 John's the attorney for the appellee, and the Rep. 95. objection was sustained by the court, It follows, therefore, that the court and the said Eagle excluded as a below did not err in excluding Eagle witness for the appellant. To which as a witness for the defendant, he be-ruling of the court, the bill of excep-ing charged in the indictment with ap-tions states, "the appellant excepted at pellant, with the same offense, and had the time," but which is not noted or not been tried and acquitted, or con-mentioned on the mihutes of the court, victed at the time he was offered as a as shown by the transcript in this witness. cause. Our statutory provision, authorizing The bill of exceptions omits to state a severance of trial in criminal prose-whether it contains all the evidence introduced at the trial. 1. This rule has been adhered to in Foster v. State, 45428, and cases cited, The appellant, on his motion for a Collier v. Stale, 20-36, even e the accused may testify.
JAN. TERM, 1856. cutions, where two or more are in-their own convictions ot its truth.2 See cluded in the same indictment, and Miller v. Ratliff; 14 Ark. 419; Mains the ruling of this court in the case of v. The State, 13 Ark. 285; Doghead Calico & Drake v. The State, 4 Ark. Glory v. 7he State, Id. 236; Cameron Rep. 430, cited and relied on by the v. The State, Id. 712; Floyd v. The counsel for the appellant, do not, in State, 12 Ark. 43. oar judgment, militate against the But independent of the foregoing principles above stated. The reason of considerations, this court would be com-the rule of evidence, which we have pelled to sustain the verdict of the jury atated, remains in its full vigor, not-in this cause on another account. The withstanding the act and adjudication transcript fails to state that the evi-referred to. dence embodied in the bill of excep-The determination of this point tions was all the evidence adduced on brings us to the consideration and so-the trial. The law in such a case is, dution of the second and remaining one that it will be presumed that facts, presented by the assignment of errors; 'without proof of which the verdict that is to say, did the court below err could not have been found, were proven In overruling the appellant's motion at the trial without the record express-for a new trial? ly negatives such facts. 3 See Best on 331 e ] '2. Upon this point there can Presumptions 68; Wharton's Amr. Cr. be no doubt. There were but two wit-L. 269; Smith v. Berry, 1 8. & M. 321 ; nesses who testified at the trial—Ewell Pinder v. Felts, 2 Id. 535; Briggs V. and Stone. The former made an affirm-Clarke, 7 How. Rep. 457; Robinson v. ative statement of facts, which tended Francis, Id. 458; Jordan v. Adams, 7 to prove, quite conclusively, that the Ark. 348; Taylor v. Spears, 8 Id. 429 ; appellant was guilty as charged. The 9 Id. 478. testimony of Stone was of that nega-*In view of the whole case, [*332 tive character, which did not counter-we hold, therefore, that there poise that of Ewell. The jury were is no error in the judgment in the exclusive judges of the credit due the Prairie circuit court upon to the witnesses, from Lhe peculiar cir-the entire transcript, 'and we ac-cumstances developed by them when cordingly affirm the judgment. Let upon the stand. They had a perfect the judgment be affirmed with costs. right to discredit the statements of Mr. Justice Scott, absent. Stone, and found their verdict upon 2. The verdict win not be disturbed. Howell v. those of Ewell ; and neither the court Webb, 2-364, note 2. below, nor this could, legitimately, dis-3. Ballard v. Nooks, 2-58, note 3. turb their verdict. To do so, would be to violate a salutary, and it is to be Cited :-20-46; 24-627-638 ; 25-335; 26-145 ; 35-413; 45-330. hoped, a permanent rule of practice, both in civil and criminal causes ; the rule in such case being, that a judgment may be reversed upon a motion for a new trial overruled, where there Is a lack of evidence of some material matter necessary to uphold the verdict; but, because a verdict may appear to be against evidence, this court will not assume the power of dictating to juries that they must believe evidence against
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.