Kraner v. State

Cooper, J., delivered the opinion of the court. The exception of the appellant taken to the action of the court in directing the jury to retire while the court heard the testimony of the witness, Postell, to determine its competency, is not well taken. While the jury is a component of the court, it is not a part of its duty to determine upon the competency of evidence, nor is it necessary that it should be present while the judge examines a witness to determine upon the competency of his testimony. The practice of retiring the jury in such cases is to be commended [161] rather than condemned, since its effect is to keeD the jury wholly uninformed as to extraneous matters which in no event should be considered by it in forming the verdict. The court properly, excluded the testimony of the witness, Postell. The facts proposed to be proved by him consisted of a narration by the deceased of the circumstances of the difficulty several minutes after it had ended and the accused had withdrawn from the scene. The statements were not verbal acts of the deceased illustrating or connected with a present occurrence or connected with and a part of the one just concluded. If the statements of the deceased were a part of the res gestee, they would be equally admissible whether favorable or unfavorable to the accused, for it is not the purport but the character of the evidence which determines its competency. If the declarations had been unfavorable to the defendant, and had been offered by the State against him, it would have been difficult to show their competency, since a sufficient time had elapsed for the fabrication of them by the deceased. There are, and in the nature of things must be, many cases in which the proposed testimony lies so near the line that it is difficult to determine upon its competency. But such is not the case here. Boles v. State, 24 Miss. 445; Regina v. Osborne, 1 Car. & M. 622. Judgment affirmed.