Page:Federal Reporter, 1st Series, Volume 5.djvu/297

 HJNITED STATES V. DE QUILFELDT, 285 �made from offering this or any proof of marriage, on the ground that she had pleaded over, and thereby waived the defence. �In Peek v. State, 2 Humph. 78, it was held that if incom- petent evidence be admitted in criminal cases, that mighthave influenced the jury, a new trial -will be awarded, although the court may think there~ was enough, independently of such evidence, to oonyiet the prisoner. 1 Bish. Crim. Proc..(2d Ed.) § 1103; 3 Whart. Cr. L. (7th Ed.) § 3258, note w. It was also held in Com. v. McGowan, 2 Pars. Sel. Caaes, 347, cited 3 Wharton, supra, that aftera court bas rejected com- petent and material testimony offered by a defendant charged with crime, the court wiU not refuse relief on the assumption that the rejected evidence would not bave availed the accused if it had been received. Both the above-cited authors seem to doubt if this be the general rule, though they put Tennessee down as holding to it, on the authority of Peck's Case, supra. That was a case where incompetent evidence was admitted, and not where that which was competent and material was rejected; but I think, on principle, the rule should be the same in either case. Besides, I am of opinion that the adju- dications in Tennessee establish the principle that a new trial must be granted for the improper rejection of testimony, as well as its improper admission, without reference to the opinion of the court as to its probable effect on the verdict. �In Workman v. State, 4 Sneed, 425, the wife ot one jointly indicted with another was rejected as a witness, and the su- preme court granted a new trial, saying : " Whether a reversai on this point will ultimately resuit in any advantage to the defendant, is not for us to judge; for, no matter how clear his guilt may be, or how deeply he may be stained with blood, it is our duty to see that he bas the benefit of the law under which his punishment is demanded." Page 428. Other cases support the rule. Stokes v. State, 4 Bax. 47 ; Hagan v. State, 6 Bax. 615; State v. Turner, 6 Bax. 201. Hagan's case is also applicable on another point : that, after this testi- mony was rejected, it would bave been improper to offer any ����