Nelson v. State

delivered the opinion of the court.

The instructions for the State were not apt under the facts of this case, but none of them save the fourth was objected to in the court below when given or made the foundation of the motion for a new trial. This instruction was calculated to prejudice the defendant, but the instructions asked and given for the defendant so clearly and fully explained the law that we do not think it possible the jury was in the least misled. The testimony for the State and that of the defendant is in direct conflict. If the jury believed the State’s witness, a clear case of murder was shown. If it believed the accused, no offense whatever was made out. From the verdict it is evident that credence was given to the State’s witness. and this beina: the case, the fourth instruction was harmless.

*218The objection to the question propounded to the witness for the State by the defendant was rightly sustained.' At the. time it was asked the testimony given unmistakably showed a case of murder; this being shown, it was immaterial what the feelings between the parties bad been. At a subsequent stage of the proceedings, and after the testimony for the defendant had disclosed his theory of the killing, viz.: that it was accidental, the court permitted him to state that he and the deceased were on friendly terms. The defendant should then have asked leave to re-examine the State’s witness for the purpose of putting the question again to her. Having failed to do this, he cannot complain; the action of the court, which was right at the time it was taken, was not made error by subsequent developments.

Judgment affirmed.