Parish v. Fite, 6 N.C. 258, 2 Mur. 258 (1813)

June 1813 · Supreme Court of North Carolina

6 N.C. 258, 2 Mur. 258

Allen Parish v. Jacob Fite.

From Mecklenburg;.

Practice. — The Court may in its discretion, permit new witnesses icr be introduced and examined before the Jury, after the argument of counsel are dosed and even after the Jury hare retired and come into Court to ask for further information. But the rule which forbids witnesses to be'introduced after the argument of the case has commenced, ought not to be departed-from, except for good rear sons, shewn to the Court.

Rule to shew cause why a new trial should not be granted, because after the Jury had retired under the charge, of the Court, they came into Court and requested that further evidence- might be heard by them , when the Court permitted two witnesses to be examined, who had not bce-n previously introduced.

The facts of the case were, that the Plaintiff had brought two actions of the same nature against the Defendant, and during the examination of the witnesses in the second,, and whilst the Jury were out deliberating on the first, two new witnesses appeared in tire secondj who deposed to facts which, in the opinion of the Court, were important, and whose evidence would have been equally important in the first. After the Jury in the second case had retired, the Jury kr the first came info 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 the two witnesses examined in the second case. The Court granted the leave, and there was a verdict for the Plaintiff.

Locke, Judge,

delivered the opinion of the Court:

It is certainly the regular and proper practice, never to suffer witnessed to be introduced after the first examination, particularly 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 rule is found-ei! on the temptation, which a departure from.it would hold out for-committing the crime of perjury. Where a Case has been argued and the party discovers the points ■on which it rests, the Coui;t will not permit him to support the weak parts of his case, by a re-examination of it, and this rule ought never to be departed from, unless the Court discover the necessity of a re-examination, and that it will not produce the evil, which it is the object of the rule to prevent. In this case, the Jury were in great doubt, and the evidence was sought for and asked by them. To satisfy them anil relieve them from, diffi- ' cully, the evidence w'as permitted to go to them. , The evidence was properly admitted and the rule must be discharged.