Opinion
No. 42115.
April 16, 1962.
1. Appeal — witnesses — wife as prosecution witness — where defendant raised no objection — point not to be considered for first time on appeal.
Admissibility of testimony of prosecution witness who stated that she was defendant's former wife could not be considered for first time on appeal, where defendant did not object to her testifying.
2. Appeal — criminal procedure — questions of amendment of affidavit and sufficiency of justice court judgment not to be raised for first time on appeal.
Questions as to amendment of affidavit, in prosecution for using threatening language over telephone, so as to show language used, and as to sufficiency of justice court judgment which did not state name of person threatened, could not be considered for first time on appeal. Sec. 2291.5, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Sunflower County; ARTHUR B. CLARK, JR., J.
Fountain D. Dawson, Greenwood, for appellant.
I. The criminal affidavit against the defendant is fatally defective. There is a variance between the criminal affidavit and the justice warrant. The said affidavit and warrant are unconstitutional, and do not charge a criminal offense. Conerly v. State, 66 Miss. 96, 5 So. 625; Quin v. State, 65 Miss. 479, 4 So. 548; Walton v. State, 64 Miss. 207, 8 So. 171; Sec. 2291.5, Code 1942.
II. The Court erred in allowing the prosecuting witness, Rosa Lee Shortridge, to testify when the record shows that she was a former wife, and does not show that she was divorced at the time that the alleged act took place. Byrd v. State, 57 Miss. 243; Carter v. State, 99 Miss. 435, 54 So. 734; Turner v. State, 60 Miss. 351.
III. The Court erred in allowing into evidence, the circumstantial testimony about telephone conservations of Rosa Lee Shortridge and Nathanial Jack. Pickle v. State, 151 Miss. 549, 118 So. 625; Jones on Evidence (5th ed.), Sec. 265 p. 507.
IV. The Court erred in refusing the peremptory instruction requested by appellant; the Court erred in denying defendant's instruction for a directed verdict of "not guilty".
V. The verdict of the jury is contrary to, and against the overwhelming weight of the evidence. James v. State, 45 Miss. 572; Webb v. State, 73 Miss. 456, 19 So. 238.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. As to the sufficiency of the affidavit. Percival v. Holley, 217 Miss. 203, 63 So.2d 817;
II. The trial court did not err in allowing the prosecuting witness to testify when the record shows that she was a former wife of appellant and does not show that she was divorced from him at the time that the alleged act took place. Carter v. State, 99 Miss. 435, 54 So. 734; Huff v. State, 176 Miss. 443, 169 So. 839; McAllister v. State, 147 Miss. 180, 113 So. 179; Ned v. State, 33 Miss. 364, 2 Mor. St. Cas. 1051.
III. As to the testimony of Nathaniel Jack. Lee v. State, 242 Miss. 97, 134 So.2d 145.
IV. The trial court did not err in refusing to grant a peremptory instruction and in denying defendant's request for a directed verdict of not guilty.
V. The verdict of the jury is not contrary to the overwhelming weight of the evidence. Clanton v. State (Miss.), 49 So.2d 267; Flemings v. State, 193 Miss. 93, 8 So.2d 457; Garvin v. State, 207 Miss. 751, 43 So.2d 209; Ivey v. State, 206 Miss. 734, 40 So.2d 609; Merrell v. State (Miss.), 39 So.2d 306; Park v. State, 240 Miss. 774, 128 So.2d 870; Passons v. State, 239 Miss. 629, 124 So.2d 847; Scott v. State, 185 Miss. 454, 188 So. 546.
The appellant Linnwood Shortridge was charged with using threatening language over a telephone to Rosie Lee Shortridge in violation of Section 2291.5, Code of 1942, by threatening to do her great bodily harm, and the appellant was tried, convicted and sentenced to pay a fine of $500 and to serve six months in jail. He appeals from that sentence and judgment.
(Hn 1) Upon the trial of the case in the Circuit Court of Sunflower County Rosie Lee Shortridge was introduced by the State as a witness for the prosecution. Among other questions she was asked the following, and made the following answer: "Are you or not the former wife of the defendant Linnwood Shortridge? A. Yes, sir." This inquiry was not pursued further and it is assigned here that the trial court erred in allowing this prosecuting witness Rosie Lee Shortridge to testify when the record only shows that she was a former wife (and she is not shown to be the present wife). The record does not show that she was divorced at the time she testified. Moreover, the record is silent as to whether she and the accused had ever been divorced. But it will be noted that she nowhere said that she was the wife of the accused, but merely answered affirmatively when asked if she was his former wife. However, the accused did not object to her testifying. Hence that point can not be considered here for the first time.
(Hn 2) Then, too, this affidavit was amendable so as to show the language used by the accused over the telephone, and that point is raised here for the first time. See Perciful v. Holley, 217 Miss. 203, 63 So.2d 817.
The judgment rendered in the justice of the peace court and from which the appeal was taken to the Circuit Court of Sunflower County, recites that the defendant was tried on a "charge of threatening the life of another", and without stating who the other person was. The sufficiency of this judgment was likewise not raised until the case reached here on appeal.
The sentence and judgment appealed from must therefore be affirmed.
Affirmed.
Arrington, McElroy, Rodgers and Jones, JJ., concur.