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57 Ark. 60

Overton v. State

Supreme Court of Arkansas

Decided December 10, 1892

Supreme Court of Arkansas · decided 1892-12-10

Grant Green, Jr., Judge. statement by the court. The appellant was indicted for, and convicted of, an assault with intent to kill one J. H. Fryer. A part of the evidence adduced at the trial was the testimony of J. M. Findley and G. W. Kizer. Findley testified, substantially, as follows: “I was with the defendant and Kizer, at the latter’s house, the evening after the killing.

Relies on Brooks v. Douglass · Estate of Cartery · Nickens v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1892-12-10

How this case has been cited

Cited by 6 later decisions — most recently May 1976

6 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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BaTTEE, J.,

¶1after stating the facts as above reported.

¶21. surprise as ground for new trial.

¶3Appellant is not entitled to a new trial on the ground . of surprise. He made no ‘‘application for a postponement of the trial in order that he ’ ’ might ‘ ‘ repair the damage done him by the unexpected testimony.” Nickens v. State, 55 Ark. 567; see also Norwich & Worcester R. Co. v. Cahill, 18 Conn. 484; Holley's Admx. v. Christopher, 3 T. B. Mon. 14; Phenix v. Baldwin, 14 Wend. 62; Estate of Carterey, 56 Cal. 473; Cook v. De La Guerra, 24 Cal. 240; Brooks v. Douglass, 32 Cal. 211; 3 Graham & Waterman on New Trials, p. 968; Hayne’s New Trial and Appeal, sec. 85.

¶4. Conceding that the instructions which the appellant asked for could have been lawfully g'iven, he was not prejudiced by the refusal of the court to give the same, as they were sufficiently covered by those g'iven.

¶52. ioRmCofce exceptions,

¶6^ird ground is not properly presented for our consideration. It should appear, if true, in the bill of exceptions. Vaughan v. State, ante, p. 1.

¶7Judgment affirmed.

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