Parish v. Fite, 4 N.C. 238, 1 Car. L. Rep. 238 (1811)

July 1811 · Supreme Court of North Carolina

4 N.C. 238, 1 Car. L. Rep. 238

Parish v. Fite.

Rule to shew cause why a new trial ought not to be granted:-

First. That after the Jury had retired under the the charge of the Court, they came into court and wished some further evidence; when the court permitted two witnesses to be examined, who had not been previously introduced.

The facts of the case were, that there being two actions of the same nature against the same defendant, and during the examination of the witnesses, in the second cause, (and whilst the first Jury were out deliberating on the first) two new witnesses appeared in the second, who deposed to two facts, which were in the opinion of the Court important, and whose evidence would have been equally so in the first cause. After the second Jury had retired, the first came into court, and stated that they were not likely to agree and wanted some further information; upon which the counsel for the plaintiff moved for leave to introduce two new witnesses, who had not been before examined, and which the court granted; and which is the irregularity, upon which this rule is obtained.

Locke, J.

delivered the opinion of the Court:

It must be admitted that the regular and proper practice would be, never to suffer witnesses to be introduced after the first examination, but especially after the arguments of counsel are closed. Yet we are of opinion that the discretion of the Judge must govern this rule of practice. The reason of the rule is grounded on the temptation it holds out for committing the crime of perjury. That when a cause has been argued, & the party discovers the points on which it is to rest, the Court will not permit a party to support the weak parts of his case, by a re-examination of the case. And we think it is right in every case to adhere to such a practice, unless the Court discovered the necessity of a re-examination, and that it will not be productive of the evil on which the rule is founded. In the present case, the Jury were in great doubt, and the evidence was sought for and asked by them. To satisfy them and relieve them from difficulty, at their request, the evidence was permitted to go to them. We are therefore of opinion that such evidence was properly permitted in that case, and that the rule ought to be discharged.