(after stating the facts). On the trial, after the State had closed its evidence in chief, it was the right of the defendant, -and his duty to himself, to introduce such evidence as he could to make good and complete his defence. He ought, to have introduced not simply a part of the evidence he could produce, but enough, if he could, to meet conclusively every material aspect of.the prosecution. Then was his opportunity of right, in the orderly course of the trial, to make his defence secure.
When the defendant closed the introduction of evidence on his part, then the State had only the right to introduce rebutting evidence, and evidence strictly to strengthen and support that offered at first to prove the allegations in the indictment. The evidence offered to contradict the defendant- as to what he swore in respect to getting money from the witness Macumber, was simply in reply.
After this, no further evidence could be introduced on either side of the action, except in the discretion of the Court. In case any injustice Avas likely to result from any inadvertence, mistake or misapprehension on either side, the Court might, in some cases ought-, to allow further evidence to be introduced, being very careful to give neither side undue advantage over the other.
That indicated above is the orderly course of trial. Any other Avould protract it indefinitely and lead to interminable confusion. If, however, the Court should alloAv a material departure from the rule on either side, the opposing party would have the right to introduce further pertinent evidence in corresponding degree.
*793It may be that it was the misfortune of the defendant that he failed to introduce his wife as a witness at the stage of the trial in which he had a right to do so. It was obvious then, that he needed to show that he came honestly by the hogs in question, and, under the circumstances, as tending to prove this, to show that he paid for them, and where he got the money with which to do so.
His wife was a competent witness for such purpose; he had the right to introduce her, (The Code, §1353,) and it is plain that he ought then to have done so, if she would prove where he got the money, and as he stated he did get it. At the stage of the trial when he offered to introduce her, it was in the discretion of the presiding Judge to allow her to be examined — perhaps he ought to have done so, but he saw and understood the course and developments of the trial, and was the better judge of the propriety of doing so, and the discretion was his, not reviewable here, unless, perhaps, in case of a clear abuse of power. 1 Whar. on Ev., 571.
It was competent for the State to prove by the witness Ma-cumber that he did not let the defendant’s wife have money to pay for the hogs. The defendant himself said that he had sent his wife to the witness to get five dollars. He thus made her his agent-, and w7hat she said when she got it from the witness, as to the purpose it was intended to serve, was competent though not conclusive. 1 Gh\ on Ev., §§113,170, 233,234; United States v. Gooding, 12 Wheat., 460.
There is no error. Let this opinion be certified according to law.
No Error. Affirmed.