Shaw

The defendant was charged with the murder of one Eugene Mason, and was convicted of murder in the second degree. He appeals from the judgment and from an order denying a motion for a new trial.

It is not seriously urged that the evidence introduced is insufficient to justify the verdict, or that the court committed any material error in the matter of instructing the jury; but it is contended that there should be a reversal on account of certain errors claimed to have been committed by the court during the progress of the *174 trial in ruling upon the admissibility of evidence. These alleged errors could and should have been avoided; but criminal cases are too often conducted upon the preconceived theory that defendant is guilty, aud that if he be given a fair trial, according to the established rules of evidence, the jury may not convict hi in. Hence embarrassing questions are frequently presented on appeal unnecessarily caused by want of ordinary care and due consideration of the rights of the accused on the part of those who conduct the trial in the court below. The purpose of a criminal trial is to discover and determine whether or not a defendant is guilty; not merely to…

I dissent, being unable to agree with the conclusion reached in the matter discussed under paragraph 7.

I think the refusal of the court to allow defendant to *179 recall the witness, Christopher, for the purpose of laying the foundation for his impeachment, was an abuse of discretion which denied the appellant his right to a fair and impartial trial. Christopher’s evidence, much more strongly than did Richardson’s, indicated that the killing was willful, deliberate, and premeditated. If that evidence was false, if it could be established to the satisfaction of the jury that Christopher did not witness the occurrences he described, or if his testimony could be legally discredited by showing that he made contradictory statements regarding the facts, a man on trial for his life should not have been denied the important right of proving it. If it does not appear affirmatively that Christopher was present at the time permission was asked, still the presumption is that he was within call, since the subpoena commands his presence during the trial of the cause, and it does not appear that he had been excused. To the contrary, it does appear that he was afterward recalled by the…