Opinion
No. 32717.
October 4, 1937.
1. WITNESSES.
To impeach a witness by a previous statement, witness must, by proper predicate, be apprised of time, place, and persons present, and the particular impeaching matter must be distinctly brought to his attention.
2. CRIMINAL LAW. Witnesses.
In prosecution of mother and son for murder of father, admission of evidence as to son's testimony at inquest that he saw mother in bed with a man not her husband, and as to other circumstances indicating that wife and such man were too intimate, was prejudicial error, where son had not been asked on cross-examination whether he had stated that he saw them in bed together on one occasion, since proper predicate had not been laid.
3. CRIMINAL LAW.
In prosecution of mother and son for murder of father, objection of mother's attorney to evidence that son stated at inquest that he saw mother in bed with a man not her husband, on ground that the record did not show that son had been asked that question, was sufficient to show that objection was made on ground that a proper predicate had not been laid.
4. CRIMINAL LAW.
In prosecution of mother and son for murder of father, testimony of mother taken at coroner's inquest, if mother had been called and used as a witness in like manner with other witnesses at inquest, would not be "voluntary," and hence would not be admissible in prosecution of mother for murder (Const. 1890, section 26).
APPEAL from the circuit court of Neshoba county. HON. D.M. ANDERSON, Judge.
W.T. Weir, of Philadelphia, for appellant.
We respectfully submit that the court erred in admitting the testimony of Mr. Norris Wilkerson where the witness undertook to state what the testimony of appellant was before the coroner's jury. She was brought in the custody of the officer (the sheriff) and she was sworn in as a witness, without the advice or benefit of counsel, without her own consent, after she had told the officer that she was not able to go before them. She was sworn in and testified against her will and then the witness, Mr. Posey, sheriff, and Mr. Wilkerson both testified as to what she told the jury there, thereby compelling her to give evidence against herself and then using it against her in the trial.
Section 26, Constitution of Mississippi; Farkas v. State, 60 Miss. 847; Jackson v. State, 56 Miss. 311; Steele v. State, 76 Miss. 387.
We respectfully submit that all the evidence with respect to the relationship alleged to have been with appellant is of a very damaging nature and unwarranted in this case, wherein it was sought and produced before the jury evidence of illicit relations with Oscar Tingle.
It is sought to prove improper conduct of appellant by hearsay evidence evidently coerced from the defendant William Church at a time when he is said to testify. If he voluntarily testified it could be used against him; if not, it could not be used. It certainly could not, however, be introduced against him for it is not a statement against his interest, but is a statement that he is purported to have made against appellant's interest and could not by any stretch of the imagination be admissible against appellant. If he were introducing this as a confession he should have introduced it while on his examination in chief; he could not introduce it after both sides rested.
In the case of Hathorn v. State, 102 So. 771, 138 Miss. 11, the court held that: "A confession should be offered in the proof in chief of the case and not reserved to be used in rebuttal of the testimony of the defense."
If it was offered to impeach the witness William Church it fails to measure up to the rule announced in the case of Cofer v. State, 158 Miss. 493, 130 So. 511, holding that it was error to permit impeachment of a witness on a collaternal matter.
Williams v. State, 73 Miss. 821; Blackwell v. State, 146 So. 628.
The evidence both for the state and defense all shows but one thing if it shows anything, that is, if appellant killed her husband she undoubtedly did in necessary self defense.
The only persons that could or did give an explanation of the killing were the appellant and her son. Their explanation is not in conflict with the physical facts or any other facts and is not unreasonable. Hence the peremptory instruction should have been given.
Bang v. State, 60 Miss. 571; Ayers v. State, 60 Miss. 709; Long v. State, 52 Miss. 23; Gaddis v. State, 110 So. 691; Blalock v. State, 79 Miss. 517, 31 So. 105; Jarman v. State, 172 So. 869; Weathersby v. State, 147 So. 481; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
On the matter of the admissibility of the confessions in the case the State submits that the evidence shown at the preliminary inquiry was sufficient to warrant the trial judge in holding them competent. We think that, under all the rules of law relating to confessions, they were clearly shown to have been freely and voluntarily made in the sense in which those terms are understood at the law. This court has held in many cases that an officer having one in custody does not have to warn such one that anything he may say may be used against him. On the other hand, the court has held that persistent questioning does not amount to coercion and a confession obtained as a result of such questioning is competent, provided no other form or species of coercion was indulged in.
Keeton v. State, 167 So. 68.
But, if it should be held that the testimony of the two defendants themselves was sufficient to make it a question of fact as to whether or not coercion was used, then this court would not be authorized to reverse the trial court in its finding of competency under the decisions which are to the effect that on a conflict in the evidence the trial court's finding will not be disturbed, unless such finding is clearly contrary to the evidence.
Brown v. State, 142 Miss. 335, 107 So. 373; Stubbs v. State, 148 Miss. 764, 114 So. 827; Buckler v. State, 171 Miss. 353, 157 So. 353; Wohner v. State, 174 Miss. 428, 167 So. 622; Keeton v. State, 175 Miss. 631, 167 So. 68.
It is a general rule that parties litigant are confined in the Supreme Court to the questions which were litigated in the trial court.
Jackson v. State, 163 Miss. 235, 140 So. 683.
If there were evidence sufficient to take this case to the jury, then we do not believe this court will substitute its judgment for that of the jury in view of the fact that it has said that it will not reverse a conviction because of an insufficiency of evidence, except where the testimony is contradictory and unreasonable and so highly improbable that the truth of it becomes so extremely doubtful that it is repulsive to the reasoning of the ordinary mind.
Thomas v. State, 129 Miss. 232, 92 So. 225; Dean v. State, 173 Miss. 254, 160 So. 584; Hinton v. State, 175 Miss. 308, 166 So. 762.
Appellant and her son, William Church, were indicted, jointly tried, and convicted in the circuit court of Neshoba county of the murder of George Church, the husband of appellant and the father of William Church. Appellant was sentenced to the penitentiary for life, and the fifteen year old son was sentenced to the state reformatory. From that judgment appellant prosecutes this appeal.
On the morning of the 1st of May, 1936, George Church was found dead by some of his neighbors on his front porch. His death was caused by his throat being cut. There was a pocket-knife lying near one of his hands and a great deal of blood was in the house and on the porch. A bloody razor was found in the house. His wife and his seven children were not at home; she was found at the home of one Tingle, a near neighbor. The evidence tended to show that the wife, with the assistance of the son, committed the homicide; that an altercation and fight occurred between them growing out of jealousy on his part because of the attentions of other men, especially Tingle. At the time George Church was sixty-three years old and his wife was thirty-three. She weighed more than he did, and both were physically active and strong. The conviction was based on the confessions of appellant and her son William, in connection with their testimony as witnesses at the trial and the surrounding circumstances testified to by other witnesses.
Appellant and her son testified that the deceased struck appellant on the head with a heavy hickory stick, knocking her down. Appellant testified further that when she arose she seized a razor, but did not know whether she cut her husband with it or not. The son testified that she threw the razor at him, and he did not know whether it cut him or not. She had a wound on her head but not a serious one. The state proceeded on the theory mainly that appellant's motive was to get rid of her husband for another man.
There was a coroner's inquest, at which Kirkland, a justice of the peace, officiated. Over appellant's objection he was permitted to testify that the son stated in his evidence at the inquest that he saw his mother and Tingle in bed together on one occasion, as well as other circumstances indicating that they were too intimate.
It is argued that the predicate was not properly laid for the contradiction; that on the trial the son was not asked whether he so testified at the inquest. We are of the opinion that the objection was well taken. He was asked on cross-examination whether he testified at the inquest that Tingle visited his mother in the absence of his father, and whether the latter was jealous of his attentions, but he was not asked whether he testified that he saw them in bed together on one occasion. To impeach a witness by previous statements, he must by proper predicate be apprised of the time, place, and persons present, and the particular impeaching matter must be distinctly brought to his attention. Harrison v. State, 168 Miss. 699, 152 So. 494; Bonelli v. Bowen, 70 Miss. 142, 11 So. 791; Roney v. State, 167 Miss. 827, 150 So. 774. This was not done. Kirkland's testimony must have been very damaging to appellant. The Attorney General argues, however, that this question was not raised by proper objection. We think the argument is without merit. Appellant's attorney objected in this language: "We object to that. The record doesn't show that he was asked that question." That could mean nothing less than the proper predicate had not been laid.
Appellant also testified at the coroner's inquest. Her testimony was used against her on the trial, over objection. The record does not disclose whether she voluntarily testified, or was called and used as a witness in like manner with the other witnesses. If the latter course was pursued, her testimony was not voluntary, and the use of it violated section 26 of the Constitution. Steele v. State, 76 Miss. 387, 24 So. 910. On another trial if it should develop that her testimony was not voluntary, it should not be admitted.
Reversed and remanded.