Opinion
No. 37420.
May 8, 1950.
1. Criminal procedure — evidence of different offense not admissible.
In a prosecution for the unlawful possession of intoxicating liquor, the accused was asked by the prosecuting attorney whether he had been drinking on the day of the search for the liquor and upon his denial, the prosecution was permitted to elicit testimony from two witnesses in rebuttal that accused was under the influence of intoxicating liquor at the time of the search: Held that this was reversible error in that accused was not on trial for public drunkenness, but had already been tried and acquitted on that charge.
2. Criminal procedure — evidence of a different offense not admissible.
The general rule is that, in criminal cases especially, the facts laid before the jury should consist exclusively of the transaction which is the subject of the indictment and that proof of a crime distinct from that alleged in the indictment should not be admitted in evidence against the accused, and although there are some exceptions such exceptions do not come within the case stated in the foregoing headnote.
3. Witnesses — contradiction on immaterial or collateral matter not competent.
In a prosecution for the possession of intoxicating liquor the fact that the accused was drinking on that day or occasion was an immaterial or collateral matter, and under the rule that it is not competent to contradict a witness on an immaterial or collateral matter it was error to permit the prosecution to prove in rebuttal of defendant's denial thereof that he was in fact in an intoxicated condition, especially when he had been tried and acquitted on that charge.
Headnotes as revised by Hall, J.
APPEAL from the circuit court of Lee County; RAYMOND T. JARVIS, Judge.
Sam E. Lumpkin and R.L. Burgess, for appellant.
I. The trial judge erred in refusing to grant the appellant a directed verdict. City of Hazlehurst v. Bird, 57 So. 360; Cogsdale v. State, 103 Miss. 826, 85 So. 206; Justice v. State, 170 Miss. 96, 154 So. 265; King v. State, 74 Miss. 576, 21 So. 235; Manning v. State, 189 Miss. 807, 199 So. 73.
II. The court erred in overruling motion of appellant for a new trial for the reason that the verdict was against the overwhelming weight of the evidence. City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Sellers v. City of Picayune, 202 Miss. 741, 32 So.2d 450.
III. The lower court erred in overruling the objection of the appellant as to whether or not appellant was intoxicated at the time the search was made.
IV. The court erred in granting the instruction to the jury for the State of Mississippi.
R.O. Arrington, Assistant Attorney General, for appellee.
Pursuant to a valid search warrant a group of officers searched appellant's automobile and found on the floor between the front and rear seats a cardboard carton containing about 15 or 18 bottles, all practically empty, but by pouring all the contents into one half-pint bottle they managed to accumulate intoxicating liquor therein to the depth of about one inch, being approximately one or one and one-half ounces.
Two affidavits were made against appellant in a justice of the peace court, one for the unlawful possession of intoxicating liquor, and one for public drunkenness. Upon a trial by jury he was acquitted of the second charge and convicted on the first charge. From that conviction he appealed to the circuit court and upon a trial de novo he was again convicted and appeals here.
(Hn 1) Appellant testified in his own behalf and on cross-examination he was asked by the prosecuting attorney whether he had been drinking that day before the search and he replied that he had not. In rebuttal the prosecution offered two officers as witnesses and over appellant's objection the trial court permitted these witnesses to testify that appellant was under the influence of intoxicating liquor at the time of the search. We are of the opinion that this was such error as to require a reversal of the case for another trial. The issue on trial was whether appellant was guilty of the unlawful possession of intoxicating liquor. He was not on trial for public drunkenness and had already been acquitted of that charge. (Hn 2) "It is a general rule of law that the evidence must be confined to the point in issue, and that in criminal cases, especially, the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment." Rains v. State, 81 Miss. 489, 497, 33 So. 19, 20. "The general rule is that proof of a crime distinct from that alleged in the indictment should not be submitted in evidence against the accused. There are well-defined exceptions to this general rule, which are sufficiently stated in the cases of Dabney v. State, 82 Miss. 252, 33 So. 973, Collier v. State, 106 Miss. 613, 64 So. 373, and Hurd v. State, 137 Miss. 178, 102 So. 293, 295, but the evidence here admitted does not come within any of these exceptions." Baygents v. State, 144 Miss. 442, 446, 110 So. 114, 115.
(Hn 3) Moreover, this rebuttal testimony served only to contradict appellant on a purely collateral matter, and the rule is well settled that it is not competent to contradict a witness on an immaterial or collateral matter. See Walker v. State, 151 Miss. 862, 119 So. 796; Cofer v. State, 158 Miss. 493, 130 So. 511, and the numerous authorities therein cited.
We find the other assignments of error to be without merit, but for the error indicated the cause is reversed and remanded for another trial.
Reversed and remanded.