Opinion
Argued February 15, 1933 —
Decided April 28, 1933.
Whether a witness shall be recalled for the purpose of impeachment is a matter resting in the discretion of the trial court, whose action will not be reviewed on appeal unless an abuse of discretion is shown.
On appeal from the Supreme Court, in which the following per curiam was filed:
"The sole ground of appeal is the alleged error of the trial court in refusing to permit counsel for defendant to neutralize the effect of adverse testimony given by one Brown, an eye witness, called by the defense.
"The conduct of a trial rests in the sound discretion of the trial court. The record shows that the trial judge afforded defendant's counsel an opportunity to neutralize the effect of the testimony claimed to be a surprise. Counsel then stated that he would not press the matter, and turned the witness over for cross-examination. This completed, he then renewed his request to lay the foundation to impeach the witness.
"`Whether a witness shall be recalled for the purpose of impeachment is a matter resting in the discretion of the trial court, whose action will not be revised on appeal unless an abuse of discretion is shown.' 40 Cyc. 2571.
"No abuse of discretion is shown. Counsel afforded every opportunity, waived the chance to neutralize the given testimony. Holding counsel to his election can hardly be called an abuse of judicial discretion.
"The judgment is affirmed, with costs."
For the appellants, Samuel H. Nelson ( Thomas L. Parsonnet, of counsel).
For the respondent, Schneider Schneider ( Jacob Schneider, on the brief).
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, HEHER, VAN BUSKIRK, KAYS, DEAR, WELLS, JJ. 11.
For reversal — None.