On State’s Motion for Rehearing
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- On State’s Motion for Rehearing
Written by the judges who cited it.
The opinion
*659
ON MOTION FOR REHEARING.
January 4, 1911.
COBB, Special Judge.
We have again considered the cases cited by counsel, and remain of the opinion that the testimony complained of in bills 3, 4, 5 and G was, under the circumstances, admissible. The conversations between Mrs. Watson and him regarding his conduct toward Mary Watson were part and parcel of his conduct extending over a period of eight years, beginning shortly after his marriage, and ending upon the eve of the homicide. Such conversations, taken apart from the conduct, would not have been admissible.
We rest the treatment of the, other questions raised in the motion upon the former opinion. The case of Skeen, 100 S. W. Rep., 770 , may seem to give support to appellant’s contention against the admissibility of the contradiction of Mary’s denial of intimacy with appellant, but there the witness admitted making the contrary statement, and Judge Davidson says there were some circumstances of suspicion of, but no evidence to sustain the fact sought to be proved. He was not considering the distinction between a case where there is already some proof of the matter and a case where there is none. Hone of the other cases cited in the motion refer to this distinction. The views of the court upon this point are sustained by the Supreme Court of Minnesota in Lindquist v. Dickson, 6 L. R. A., new series, 729, and the English Court of Criminal Appeals, Dibble case, 1 Crim. App. Cas., 156, the English statute, 28-29 Vic., being in substance the same as ours.
The motion is overruled.
Overruled.