Archibald Barber, Plaintiff in Error, vs. The State of Florida, 5 Fla. 199

ANDERSON, C. J. : This case is brought up by agreement as upon writ of error from the Circuit Court of Duval County. On the trial of the plaintiff in error on an indictment for assault and battery, the solicitor of the State omitted to prove the time when the offence charged was committed, till the prisoner’s counsel, on the solicitor announcing that he had closed, addressing the Court in the defence, aslced the Court to charge the jury, that the prisoner was entitled to a verdict on account of the omission.

The solicitor of the State then moved the Court for leave to introduce a witness to prove the time ; to which prisoner’s counsel objected. The Court overruled the objection, the witness was introduced, and the time was proved. This ruling of the Court is assigned for error. It is undoubtedly true, that after the counsel for the prosecution has closed his case, and counsel for the accused has been beard in the defence, the former has not the .right to recall a witness or to examine a new one. This is ¡in accordance with well settled rules of practice in relation to the examination of witnesses.

Bnt it is incorrect to consider the right of counsel and tbe duty of a Judge as alike regulated by the same inflexible rules. The province and peculiar office of the latter, is to ascertain and establish the truth, and the policy of the law therefore, wisely confides to him the right so to use the necessary rules of practice, as not to allow the letter to thwart and defeat their spirit.

"When, the Judge perceives that in consequence of the inadvertence of counsel or other cause, the rigid enforcement of the rules would defeat the great object for which they were established, it is his duty so. to relax them (when it can be done without injustice to any) as to make them subserve their true purpose, which is to aid the Court and the parties before it in determining and adjusting their respective rights.

The security which we have from any injury growing out of this license, arises from this distinction — that counsel have no right to examine witnesses out of the prescribed order ; it is only a permission which may be awarded or refused by the Court, as the Judge may perceive that it can or cannot be allowed with justice to all parties. In the case before us, the solicitor had no right to recall the witness Beers — his rights are regulated by the rule, and according to its terms the witness could not be recalled.

But the Judge had the right to recall or to permit the solicitor to recall him when, as in this case, it was obvious no injustice could "be done to the other party by the relaxation of the rule. Such we understand to be the practice in all the best regulated Courts, and it appears to us that the practice is in accordance with the purposes for which Courts of Justice are established. We conclude, thcrpfpre, that there was no error in the ruling of the Court. Per. curiam. Bet the judgment be affirmed,