Opinion
No. 41718.
November 28, 1960.
1. Appeal — evidence — case presented purely a question of fact — judgment on jury verdict affirmed.
Where the case presented purely a question of fact and the jury decided the case on such disputed testimony, the judgment of the lower court should be affirmed.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Forrest County; STANTON A. HALL, Judge.
W. Arlington Jones, Hattiesburg, for appellants.
I. The Court erred in refusing to permit the defendants to recall the prosecuting witness, Harold Stanley, to testify, and erred in refusing to permit the defendants to show that the prosecuting witness, Harold Stanley, had made threats to the defendants, and therefore, the Court erred in overruling the motion for a new trial. Boutwell v. State, 165 Miss. 16, 143 So. 479; Lambert v. State, 199 Miss. 790, 225 So.2d 477.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. In order to impeach witnesses by his alleged previous statements or conversations, he must, by the predicate, be apprised of the time, place, and persons present, and the particular matter as to which it is designed to impeach the witness must be distinctly presented to his or her attention. Harrison v. State, 168 Miss. 699, 152 So. 494.
II. The granting or refusing of such a request to recall a witness to the stand is largely within the discretion of the trial judge and there is no abuse of that discretion shown here. Appellant knew of the necessity for laying the predicate when Stanley was originally on the stand. Phillips v. State (Miss.), 43 So.2d 208.
(Hn 1) This case presents purely a question of fact as there was testimony sharply conflicting and the jury had decided the case on this undisputed testimony. That being true, the judgment of the lower court should be, and it is, hereby affirmed.
Affirmed.
Lee, Arrington, Gillespie and McElroy, JJ., concurring.