| Show it was also shown that when the affair occurred it was a time of indian war that in all the settlements citizens congregated into little towns or villages and had forts forte and guards out every night these guards were some of tache who assisted in the pursuit of jones hancock assisted aud the otner other witnesses for the prosecution and defense present at the time of the shooting of jones also testified that he had nothing whatever to do with the occurrence that he was walking by the side of one of the guards when the shot was fired without his knowledge or thought of the intention of any one to shoot and that he was simply simpli present for the purpose of connecting the defendant with the shooting of jones which the defense insisted was an improper one the prosecution produced evidence tending to show that on this same night several hours earlier the mother of henry jonts jons was killed at another place in payson and that the defendant was the man main who committed this murder also thus introducing testimony tending to prove two distinct offenses of murder at st different times and different places much other testimony was introduced it was alleged by the defense for the sale purpose of inflaming the prejudices re and passions and having no tendency whatever to prove the indictment it was conceded that hancock had been ever since the date of the alleged murder one of the most prominent citizens of payson fl ayson well known to all the officers and others that he had during all those years borne a good character and had a high standing in that community among the errors relied upon constituting sti the assignments of error are that the court allowed evidence of other crimes to be proven for the purpose of aggravating the one described in the indictment that it charged on the facts of the case and also erroneously charged as to the law of good character in rejecting the testimony of warren N du auberry benjamin bachman D T dark clark and others as to the character standing deportment and lire life of the defend defendant arit from the time of the alleged 11 ed homicide up to the time lime of trial further U arther that the court errea in charging the jury upon the facts as to the belief to be attached to witnesses who testified to the exact language thirty two years after the transaction also in charging that time lime does not run in favor of a murder and that no VP lapse of outtie out the stains that the blood shed by the murderer makes in the course of his bis argument on behalf of the appellant at torney brown urged in substance that if there had been a gross murder committed at the time alleged it was fair to presume that the grand jury or some gome prosecuting officer would have taken nutice notice of the fact unless it was impossible for some reason to procure an n indictment such reason would be either that the crime was a secret one and that the defendant secreted himself that the witnesses were secreted or that there was some state of public feeling which prevented their ti in or some other adequate reason unless there was such reason it was incumbent upon the prosecution to prove such facts no aftem attempt pt was made to do it no reason had bad been stated why during all the thirty two years when the witnesses witness ea were living when the evidence could be procured to show who was guilty and who was not guilty the defendant wai wa not prosecuted it if was any ADY occasion for that step fite it wax was proved oil the trial that there were many persons present quite thirty or forty whether hancock took any part in the killing billing whether he used the words slip it to him boys or in any way incited the killing of henry Jone Jones ewas was the essential and all important fact to be determined it could be determined when all these witnesses were alive and when it was fresh in their mind and not at any other time under this state of facts counsel submitted that instruction no 21 as requested by the defendant should have been given to th the jury ejury this reads as follows if the jury find that at the time of the alleged killing nearly thirty two years ago there were present a large number of altues ses sy Y whose testimony the truth of the facto relative to the killing could have been established and who were known to the prosecuting olf feer or who could have been known by slight inquiry and that the defendant has been openly living in this county all the time and the officers representing tle tie people knew of the charge and neglected to bring defendant to trial for thirty two years you would be justified ju stifled in believing that the testimony of absent and deceased eyewitnesses eye witnesses would have been favorable to the innocence of defendant in any civil cause if the plaintiff although there ahert be no statute of limitations applicable to the case left his bis caw case for thirty two years until the witnesses of the transaction were dead or gone and then undertook to maintain his bis case no matter uron what equity or what justice it may be founded the court said it was stale and i 4 aught not to be heard at this time why should not the same rule he asked be applicable to this criminal case it was a case in which the people were preventing a fair trial by neglecting and failing to bring the indictment the defendant could not procure himself to be indicted for the purpose of substantiating his innocence it would appear by his presence during that long period that he had had not dreamed that anybody could believe him guilty of crime yeti yet thirty two years after the time when the power to establish his innocence which might have been as clear as daylight had passed away the prosecution were permitted to find an and convict a man 0 on n the testimony of one old Ins impeached peache d dishonest witness the usual rule of evidence as applied to such old cases should be applied to this criminal case if the defendant suppressed evidence concealed evidence and procured the absence of witnesses that had always been considered evidence of his guilt of the strongest character here the prosecution had prevented the defense having the evidence of the eye wit nesses by waiting u until antil they v ere d dead ea d or absent district attorney varian then replied on behalf of the people |
