Opinion
No. 42031.
December 18, 1961.
1. Criminal law — evidence — reputation of defendant — where defendant had not put his reputation in issue.
Generally, testimony of defendant's bad reputation cannot be introduced until he has put his reputation in issue by offering testimony of his good character.
2. Criminal law — same — same — same.
Error, if any, in admitting sheriff's testimony reflecting on alleged bad reputation of defendant who had not put his reputation in issue was, because of overwhelming evidence, harmless.
3. Intoxicating liquors — unlawful sale — evidence sustained conviction.
Evidence sustained conviction for sale of whiskey.
Headnotes as approved by Rodgers, J.
APPEAL from the Circuit Court of Covington County; HOMER CURRIE, J.
W.W. Dent, D.A. McLeod, Mt. Olive, for appellant.
I. The Court erred in overruling the appellant's objection to the testimony given by the sheriff that on numerous occasions, on reports, the sheriff investigated Pearlie for operating north of the highway. Brooks v. State, 209 Miss. 150, 46 So.2d 94; Smothers v. Jackson, 92 Miss. 327, 45 So. 982; State v. Sisk, 209 Miss. 174, 46 So.2d 191; Wallace v. State, 170 Miss. 454, 155 So. 197; Sec. 2625, Code 1942; 22 C.J.S., Sec. 676 p. 1067.
II. Two distinct sales of liquor are inadmissible where the affidavit charged sale on or about a specified date. Blackwell v. State, 166 Miss. 524, 146 So. 628; Robbins v. State, 151 Miss. 529, 118 So. 535; Sec. 26, Constitution 1890; 22 C.J.S., Sec. 682 p. 1084.
III. The statement of the trial judge that the sheriff was the first law enforcement officer of the county was prejudicial to the defendant.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The only argument on this appeal is with respect to the admissibility of the testimony of the sheriff to the effect that the sheriff had had a number of reports that appellant was operating at a specified place and that the sheriff had been out to that scene a number of times. If this testimony is not admissible under Section 2625, Mississippi Code of 1942, the admission thereof is certainly harmless and should not work a reversal under Rule 11 of this Court in view of the other positive testimony in this record by the sheriff and the two prosecuting witnesses, Hudson and Ross. Furthermore, appellant is estopped to question the admissibility of this testimony when by his persistent cross-examination of Sheriff Graham, he elicited the same type testimony from the sheriff. Gholar v. State, 203 Miss. 371, 35 So.2d 706; Lee v. State, 207 Miss. 96, 39 So.2d 868, 338 U.S. 803, 94 L.Ed. 486, 70 S.Ct. 64; Stone v. State, 210 Miss. 218, 49 So.2d 263.
The appellant Pearlie Pope was convicted in the Justice of the Peace Court of Covington County for the crime of selling intoxicating liquor. He appealed to the Circuit Court where he was again convicted, and from the sentence of that Court he has appealed to this Court.
The testimony reveals that on June 11, 1960, three men purchased a pint of whiskey from defendant, on a lonely country road in Covington County, for the price of $4.00. Just as the customers were about to "pull off" and leave, the Sheriff of Covington County appeared in front of them, about the same time Pearlie Pope disappeared from beside them, taking with him the aforementioned $4.00. The sheriff asked the customers where the whiskey was, and the situation having deteriorated so rapidly, they forgot their thirst and turned the contraband over to him without having uncorked the bottle.
The customers and the sheriff testified against the defendant.
Pearlie Pope complains on appeal that the admission of the testimony of the sheriff, when he was asked why he was out there and replied "Well, I was out there with the report, oh, a number of times, that Pearlie was operating off the road north", was inadmissable because it presented to the jury the reputation of the defendant. The defendant objected on the ground that he had not placed his reputation in issue, and the sheriff's testimony tended to show the commission of a crime other than that for which he was being tried.
(Hn 1) It is a general rule that testimony cannot be introduced in a criminal case to show bad reputation of a defendant until he has put his reputation in issue by offering testimony to show good character. See Smothers v. City of Jackson, 92 Miss. 327, 45 So. 982; State v. Sisk, 209 Miss. 174, 46 So.2d 191; 22A C.J.S., Sec. 682, p. 729; Wallace v. State, 170 Miss. 454, 155 So. 197; Hawkins v. State, 224 Miss. 309, 80 So.2d 1. (Hn 2) In the case at bar, however, the testimony is so overwhelming that defendant is guilty of selling intoxicating liquor, the sheriff's testimony with reference to "a report, oh, a number of times, that Pearlie was operating off the road north", pales into insignificance and is harmless, if in fact it were an error. See Hinton v. State, 209 Miss. 608, 46 So.2d 445; Page v. State, 208 Miss. 347, 44 So.2d 459; 22 C.J.S., Criminal Law, Sec. 401 (11), p. 1069; McMullen v. Mayo, 8 S M (Miss.) 298.
(Hn 3) We do not find reversible error in the record of this case, and for that reason the judgment of the trial court is affirmed.
Affirmed.
Lee, P.J., and Kyle, Arrington and McElroy, JJ., concur.