Opinion
No. 33061.
March 14, 1938.
1. WITNESSES.
Generally, a witness cannot be corroborated by evidence that he previously made a statement corresponding with his testimony.
2. WITNESSES.
Where accused introduced evidence that state witness, who testified that accused confessed to him, and stated he knew nothing about the crime and agreed to testify as to confession only after unknown persons whipped him, constable's testimony that such witness, before trial but after alleged whipping, had made statement to constable corresponding with his testimony, was inadmissible.
APPEAL from the circuit court of Clarke county. HON. ARTHUR G. BUSBY, Judge.
W.F. Latham, of Quitman, for appellant.
The lower court committed error in admitting the evidence of the witness, C.F. Herring, offered in rebuttal by the State over the timely objection of the appellant for the reason that the said evidence was not offered by the State in their case in chief, and that the witness, C.F. Herring, being a constable and an officer of the law, was highly prejudicial to the appellant, and was not in rebuttal to any testimony offered by the appellant.
The lower court erred in refusing Instruction No. 5 offered by the appellant.
In criminal cases the defendant is always presumed to be innocent of the crime charged until his guilt has been established beyond a reasonable doubt, and this presumption continues in his favor throughout every stage of the trial down to and until the jury shall have reached a verdict.
Howell v. State, 98 Miss. 439; Underhill Criminal Evidence, page 33, Sec. 18; People v. Macard, 73 Mich. 15, 40 N.W. 784; State v. Krug, 12 Wn. 288, 41 P. 126; People v. McNamara, 94 Cal. 509, 29 P. 953; Edwards v. State, 69 Neb. 386, 95 N.W. 1038; Neilson v. State, 146 Ala. 683, 40 So. 221; State v. Samuels, 67 A. 164; Gow v. Bingham, 57 Misc. 66, 107 N.Y.S. 1011; Bartley v. State, 53 Neb. 310, 73 N.W. 744; State v. Stubblefield, 157 Mo. 360, 58 S.W. 337; State v. Howell, 26 Mont. 3, 66 P. 291; People v. Arlington, 131 Cal. 231, 63 P. 347; Emery v. State, 101 Wis. 627, 78 N.W. 145; Baker v. Com., 90 Va. 820, 20 S.E. 776.
And it is the duty of the jury if possible to reconcile the facts proven with this presumption.
Thompson v. State, 83 Miss. 287, 35 So. 689; Castle v. State, 75 Ind. 146; Aszman v. State, 123 Ind. 347, 24 N.E. 123, 8 L.R.A. 33; Farley v. State, 127 Ind. 419, 26 N.E. 898; Vanhouser v. State, 52 Tex. Cr. App. 572, 108 S.W. 386; Burton v. Commonwealth, 108 Va. 892, 62 S.E. 376.
This is a fundamental principle of criminal law, and the defendant is entitled to have the jury properly instructed on the law of such presumption, and the refusal to so instruct when properly requested is reversible error.
Gentry v. State, 108 Miss. 505; State v. Gonce, 79 Mo. 600; People v. Potter, 89 Mich. 353, 50 N.W. 994; Reeves v. State, 29 Fla. 527, 10 So. 901; Rogers v. State, 117 Ala. 192, 23 So. 82; Foster v. State, 89 Wis. 482, 62 N.W. 185; People v. Willett, 105 Mich. 110, 62 N.W. 1115; Castle v. State, 75 Ind. 146; Coffee v. State, 5 Tex. App. 545[ 5 Tex.Crim. 545]; Farley v. State, 27 Ind. 419, 26 N.E. 898.
W.D. Conn, jr., Assistant Attorney-General, for the State.
It is a general rule that the state cannot bolster the character of one of its witnesses unless and until the defendant has undertaken to impeach such witnesses. When this has occurred, then, of course, the state has a right to show the character of the party so as to enable the jury to fairly pass on the weight it shall give to the testimony of such witness.
In the case at bar the defendant undertook to show that coercive measures were used to induce the testimony of the witness, Miller. This had a tendency to weaken the credibility of the witness in the eyes of the jury. The state then, as a matter of right, was authorized to show the circumstances under which the testimony of this witness was secured and to negative the suggestion of coercion. That was all that the testimony of Herring related and, as such, we submit was proper.
The record does not indicate that appellant refused to use the instruction after being modified. This the record must show before any error can be predicated on the refusal of same.
Crane v. State, 157 Miss. 548, 128 So. 579.
However, if the record shows enough to justify the consideration of this instruction of the court, we submit that the instruction, as requested, does not go far enough to present properly the law governing the presumption of innocence.
Gentry v. State, 108 Miss. 505, 66 So. 982.
Argued orally by W.F. Latham for appellant and by W.D. Conn, jr., for the State.
The appellant was convicted of grand larceny. The evidence was circumstantial, except a confession which a witness by the name of Miller said the appellant had made to him. It appears from the evidence introduced by the appellant that Miller had stated that he knew nothing whatever about the commission of the crime; that thereafter he was whipped by unknown persons and made to promise to testify as he afterwards did. This was denied by Miller. At the conclusion of the appellant's testimony, the state, in rebuttal, introduced a constable who said that prior to the convening of the court Miller had made the same statement to him that he made when on the witness stand.
As a general rule a witness cannot be corroborated by evidence that on a previous occasion he made a statement, corresponding with his testimony, but the state says that an exception to this rule exists where the witness has been impeached, as Miller was here. If such an exception exists, as to which we express no opinion, the case does not come within it for the reason that it is clear from the evidence that if Miller promised to deliver the testimony because of a whipping administered to him, the statement made by him to the constable was after he made the promise.
Reversed and remanded.