¶1The opinion of the Court was delivered by
¶2The defendant was indicted and tried for murder. On a conviction of manslaughter, he was sentenced to ten years at hard labor. He appeals from tlie verdict and judgment.
¶3*82Tlie record contains twenty-two bills of exceptions ; four, taken by tlie State and eighteen, by tlie accused.
¶4It is needless to consider tlie first four, as tlie State asks an affirmance of tlie judgment appealed from,
¶5r.
¶6The first of the other bills was taken to tlie refusal of the trial judge to allow evidence to show that the deceased was not in the habit of carrying- pistols, or other arms.
¶7The testimonj- was clearly irrelevant, particularly when it is considered that its object was, as intimated at the time it was offered, to establish a case of self-defense.
¶8II.
¶9Tlie- second bill is to the refusal of the judge, to permit evidence to be heard to prove “that the deceased had large and influential family connections and friends, that the life of accused after the killing of deceased and before his bond was forfeited was threatened by relatives of the deceased.” The object for which the testimony was offered, was stated to be, to rebut the iiresuniption of guilt claimed to result from the forfeiture of the bond and the flight from justice.
¶10The evidence was irrelevant. If admitted, it could not have justified the forfeiture of the bond and the flight from justice, or rebutted the presumption mentioned.
¶11The district judge says that he permitted the accused to show, after tlie flight had been proved, any fact explaining why he had fled and that after thus ruling, no question was put to the witness.
¶12III.
¶13The third bill is to the ruling of the district judge permitting the State to examine a witness, after cross-examination had been closed by the accused.
¶14It is difficult to realize what the objections were. They seem to be that the State had already dismissed the witness and that after such dismissal, the State could examine him no further.
¶15The bill does not show that the witness had been dismissed. It avers that-.he liad not left Ms seat, when the State, offered to further examine him.
¶16The State had a clear right to re-examine him, as was proposed to be done, touching “ shade trees ” which had been testified to by him, on the cross-examination by counsel for the accused and which, after all, it does not appear was a matter of any significance.
¶18The fourth bill is to the. refusal of the judge to allow a question to be answered, the object of which was to show that on the Sunday morning preceding the homicide the deceased had made threats against the life of the accused.
¶19The testimony was, properly, not allowed. It should have been offered also to prove that the threats thus made had been communicated to the accused. It is not pretended that it was offered for that purpose also.
¶20The district judge states that he afterwards ruled that communicated threats could be received in evidence.
¶21V.
¶22The fifth bill is to the refusal of the district .judge of permitting State witnesses to be questioned on cross-examination, for the purpose of impeaching the testimony of other State witnesses not yet heard. The complaint has no merit. Witnesses who have not as yet been sworn and testified, cannot be impeached. The attack is premature. Waterman’s Dig. p. 657, No. 126.
¶23VI.
¶24The sixth bill is to the ruling of the judge permitting the State to offer evidence to show the condition of the pistol of the deceased when found and that it could not have been snapped.
¶25It was perfectly legitimate for the State to establish such state of facts, particularly in a case where the defense was self-defense.
¶26VII.
¶27The seventh bill is to a charge given by the judge to the jury, who, after retiring and being oxrt all night had returned into court, asking for instructions as to the different verdicts they could render.
¶28' The charge given by the Court is embodied in the bill. It appears to be legal and fair and to have been given, after the judge had asked, whether there was any objection to his charging the jury as requested and no objection being made..
¶29The objection was made after the jury had returned from their seats though not from the room. The bill does not state the grounds upon which the objection rests. It should have done and is, therefore, hardly entitled to notice.
¶30YÍII.
¶31The eighth bill is to the refusal of the district judge to charge the jury : “That where a witness, credible and of good character, swears affirmatively to the existence of a fact, that they heard and saw things, *84that the testimony of witnesses who thus swear affirmatively is entitled to more weight than the testimony of witnesses of good character and credible, who swear negatively, that they did not see or hear.” (
¶32The charged, as asked, was too broad and lacked precision.
¶33The rule is that: when one witness swears positively that he saw or heal'd a fact, and another, who was present, merely swears that he did not see or hear it, and the witnesses were equally faith-worthy, the general principles would, in ordinary cases, create a preponderance in favor of the affirmative, where the position can be reconciled with the negative, without violence and constraint.
¶34Evidence of a negative nature, may, under particular circumstances, not only be equal but superior to positive evidence. This must always depend upon the question: Whether the negative testimony can be attributed to inattention, error, or defect of memory and whether the witnesses had equal means and opportunities for ascertaining the facts to which they testify and exercised the same ¥
¶35Suppose six persons, whose sense of hearing is excellent and who are, otherwise, equally competent, were placed in a room and told to watch whether the clock found in it strikes, or not, the hour; that faithful to their instructions, they had so watched when the large hand passed over twelve and liad so continued watching for five'minutes or more and that when interrogated, two were to swear that the clock had struck and four that it had not, it is manifest that it could not be claimed that the preponderance should be in favor of the testimony of the affirming witnesses.
¶36The principle is further inapplicable, where a negative depends on’ the establishment of an opposite fact, such as an alibi for instance. Starkie, vol. 1, sec. 82, p. 516.
¶37It has been often held that it is not true, as a matter of law, that negative evidence may not be sufficient to overbalance positive testimony. 98 Mass. 381; 18 Ill. 266; 8 Jones, N. C. 308.
¶38In such cases, the jury or judge have to weigh, consider and decide for themselves somewhat regardless of general rules.
¶39In the present case, it is clear that the district judge properly declined to give the special charge asked, as he was not bound to add to or take from the same. He, however, stated to the jury, without any objection being made, that they were the judges of the law and facts, as to innocence or guilt of the accused, virtually telling them that the weight which was to be given to conflicting testimony, had to he attached by them.
¶41Tlie ninth bill is taken to a charge given orally by the judge, when he had been asked to charge the jury in writing.
¶42The bill and the record show that the judge was requested to charge the jury in writing and that he did so and that it was after he had given the written charge that he was requested to inform the jury of the punishment inflicted for manslaughter and to give the definition.
¶43The judge states that he expressed a readiness to give the charges orally or in writing and, that it is when he became satisfied that counsel were willing that lie should give them orally, that he did so.
¶44There is nothing to show that the judge was asked and refused to give the supplemental charges in writing, or that he exhibited any unwillingness to comply with such request had it been made, or said, or did anything tending' to throw on counsel any blame for the inconvenience, if any, to which the jury might be subjected.
¶45The ruling in State vs Porter, 35 A. 535, and in the cases cited there, was made under quite- a different state of facts and does not apply to this case.
¶46X.
¶47The tenth bill is to the refusal of the district judge to allow a question to be answered, the object of which was to impeach the testimony of a witness previously heard.
¶48That witness, the bill states, had never denied the facts contended for, but had merely answered that he did not remember whether he had, or not, done the particular act.
¶49It is evident that this witness, by such answer, had proved nothing and that his credibility in that regard could not be attacked.
¶50XI and XII.
¶51The eleventh bill is to the ruling of the district judge permitting the State to traverso the affidavit of the. accused for a continuance and to show that there was a witness present, for the accused, who could testify to the facts that could be proved by the absent -witness.
¶52The twelfth bill is to the refusal of the judge to grant the continuance, on the face of the affidavit made by hire prisoner, to secure the same.
¶53It is sufficient to say that the judge did not err in refusing the continuance, for the reason: that no legal steps had been taken to secure the absent witness and no due diligence had been used and, further, because the case liad been fixed for trial by consent, without any reserve of right.
¶54*86Besides, there was a witness present, able ancl willing to testify as the absent one would have done, if present and testifying. It does not appear, nor is it claimed that this witness present ever was examined on the trial. 6 A. 556; 8 Mo. 606; 7 Tex. App. 549.
¶55Finally, it is more than questionable whether the testimony expected to be given by the absent witness, if offered, would have been admissible, as its object was to prove hearsay declarations, not part of the res gestas.
¶56It must be an arbitrary and oppressive exercise of power on the part of the court, in refusing a continuance to justify the interference of the appellate court and the remanding of the case — although such interference is trply due and will not be denied, when the refusal has worked a manifest injury. Waterman’s Dig. p. 112, No. 7.
¶57In the present instance, the, refusal of the judge to grant the continuance has surely worked no such injury. Crim. Law Mag. 1, p. 683; 68 Mo. 305.
¶58XIII and XIV.
¶59The thirteenth and fourteenth bills are to the refusal of the judge to give special charges as to the law of self-defense and as to reasonable doubt.'
¶60The charges asked are questionable, but' even if they were legal, it was unnecessary for the judge to have given them. His written charge, which covers some fourteen pages of the transcript, appears to he full, fair and legal, and covered substantially the charges asked.
¶61XV, XVI and XVII.
¶62The fifteenth, sixteenth and seventeenth bills are to the refusal of the judge to permit hearsay evidence not part of the res gestas and threats which, if made, had not been communicated to the accused. They are of no avail.
¶63XVIII.
¶64The eighteenth and last bill is to the refusal of the judge to grant a new trial, under which no evidence was adduced or even offered. It practically refers to matters already considered and determined and incorporated on the bills passed upon.
¶65The judgment appealed from sentences the accused for the commission of a crime perpetrated more than five years previous.
¶66Judgment affirmed.