Summary
In Bove v. State, 185 Miss. 547, 188 So. 557 (1939), we pointed out that it was error for the prosecution to cross-examine a witness introduced by the State unless there was a showing that the prosecuting attorney had been taken by surprise.
Summary of this case from Hooks v. StateOpinion
No. 33650.
May 8, 1939. Suggestion of Error Overruled June 12, 1939.
1. WITNESSES.
Prosecution was not entitled to introduce and cross-examine witness as an adverse witness in absence of showing that prosecuting attorneys had been taken by surprise at his testimony or that he had proven to be hostile.
2. CRIMINAL LAW.
Error in introducing and cross-examining witness as an adverse witness without showing of surprise or hostility was waived by failure to object thereto until prosecution requested that witness be committed for perjury and by court's statement to jury that prosecution's request in their presence be disregarded.
3. CRIMINAL LAW.
In arson prosecution, instruction that testimony of certain rebuttal witnesses contradicting witness with respect to whether witness had said that accused told witness that accused was going to burn store, should not be considered as evidence of guilt, but only as going to credibility of witness, should have been given, but refusal in view of other instructions was not reversible error.
4. ARSON.
Substantive testimony as to circumstances surrounding burning of store, though circumstantial, considered in connection with fact that merchandise was removed by accused prior to burning, was sufficient to sustain conviction for arson.
APPEAL from the county court of Warren county; HON.C.W. THIGPEN, Judge.
Harry K. Murray, of Vicksburg, for appellant.
Looking to the first assignment, we find County Attorney O'Neill placing Jack Wright on the stand as a state witness for the evident purpose of impeaching him and introducing a written, sworn statement taken at Yokena, Mississippi, by himself, the Fire Marshal and a deputy sheriff. Then we find the county attorney arguing with Wright, abusing him, charging him again and again with perjury, making a question of fact between himself and his witness, asking the jury to decide whether he had called Wright a liar in the grand jury room, finally asking the court to commit the witness for perjury.
Since a party cannot, ordinarily, impeach his own witness on the ground of surprise unless the party show that he has actually been surprised by the testimony of his witness, it follows as a corollary that a party who introduces a witness will not be permitted to avail himself of a pretext of surprise in order to get before the jury contradictory statements of the witness when such statements are otherwise incompetent as evidence.
70 C.J. 1033 and 1034; Fong Lum Kwai v. U.S., 49 F.2d 19; Chism v. State, 70 Miss. 742, 12 So. 852.
In Dunk v. State, 84 Miss. 452, 36 So. 609, Judge Truly, speaking for this court, said: "It is only in a rare and exceptional case, if ever, that a district attorney, whose duty it is to see that exact and even-handed justice is dealt out to all alike, to see that the innocent are protected and the guilty alone punished, should be permitted to attack the credibility of his own witness."
Williams v. State, 73 Miss. 820, 19 So. 826; Williams v. State, 31 So. 197.
Looking to the trial, taking into consideration the conduct of the county attorney in his examination of his own witness, Wright, and afterward placing on the stand a member of the grand jury to vindicate him in his statement that he had not called Wright a liar in the grand jury room, injecting collateral matters, asking the court in the presence of the jury to commit Wright for perjury; then, going further and finding the district attorney, in the impeachment of a state witness, injecting into the trial the matter of whether Bove, the defendant, was a Dago and that Bove's brother had killed his wife's sister; the court all of this time allowing these unfair and prejudicial statements and remarks to go into the records; the court examining the witnesses; the state building its case upon the impeachment of its own witness, almost in its entirety. Then the court below, refusing the instruction set forth in the fifth assignment of error, allowing the impeaching testimony to go to the jury as substantive evidence — can this court say that the appellant received a trial according to law?
After taking all the evidence in this case, it was the elementary right of the defendant to have the court instruct the jury as to the law of the case.
16 C.J. 855.
Where evidence is introduced or is admissible only to impeach either a witness for defendant or defendant himself when he testifies, and is calculated to cause injury unless limited to such purposes, the court, particularly on request, should charge that this evidence shall be considered by the jury only on the question of the credibility of the witness or defendant, and not to show the guilt of defendant. Thus, where evidence that defendant or a witness has made prior statements out of court different from his testimony in court is admitted, not as original evidence but to discredit his testimony in court, the court should so instruct the jury.
Hill v. State, 79 So. 98, 118 Miss. 170; 16 C.J. 855, note 14. W.D. Conn, Jr., Assistant Attorney-General, for the State.
The first question that arises is whether the state has the right, knowing in advance that a witness is hostile and will not stand by statements previously made, even though under oath, nevertheless, to put such witness on the stand and cross-examine him as a hostile or adverse witness and then impeach him by offering the original statement and impeach him further by offering witnesses to show that the witness has made statements out of court inconsistent with and contradictory of his testimony in court. We readily concede that in some jurisdictions this is not permissible as will be illustrated by the Texas case of Butcher v. State, 284 S.W. 219.
If this were a case where the state had been entrapped into offering Wright as a witness and the witness had "surprised" the prosecutors, then it is clearly within the discretion of the court as to whether after a plea of "surprise" the witness may be treated as a hostile one and allow him to be cross-examined and led.
Rutland v. State, 155 So. 681; Dunk v. State, 84 Miss. 452, 36 So. 609; Dodd v. State, 88 Miss. 50, 40 So. 545; Di Carlo v. U.S., 6 F.2d 364.
The Minnesota rule seems to be clearly expressed in the case of State v. Shea, 182 N.W. 445. In that state it is held that the prosecution, surprised by adverse answers of an unwilling witness called for the state, may be permitted by the trial court in a proper case and in the exercise of a sound discretion, to cross-examine him to refresh his recollection or to get a possible correction or change of his testimony; and failing in this may be permitted to impeach him by showing contradictory statements.
Commonwealth v. Reeves, 110 A. 158; Reese v. Trasoff, 165 A. 672; Morris v. Guffey Queen, 188 Pa. 534, 41 A. 731; Beneks v. State, 196 N.E. 73; Commonwealth v. Delfino, 102 A. 949.
The writer has looked into a number of cases which, in a measure, indicate that in a situation such as we have at bar the state would have a right to put on this hostile witness, knowing him to be such, and by cross-examination of him, undertake to have him testify in accordance with sworn statements which he had made outside of the trial. While these cases by no means are cited as being in point, they are referred to as showing the reasons which permit this character of examination.
Commonwealth v. McIntosh, 259 Mass. 388, 156 N.E. 712; Ferguson v. Standley, 89 Mont. 489, 300 P. 245; Ettinger v. Goodyear, 30 Ohio App. 572, 165 N.E. 862; St. v. Bien, 95 N.J. Law 474, 113 A. 248; State v. Bricker, 99 N.J. Law 521, 123 A. 297; Kuhn v. U.S., 24 F.2d 910; Curtis v. U.S., 67 F.2d 943; Brown v. State, 176 Ark. 1203, 3 S.W.2d 292; People v. Deckert, 77 Cal.App. 146, 246 P. 157; Weiss v. People, 87 Colo. 44, 285 P. 162; State v. Hopkins, 172 A. 841; People v. Burnstein, 261 Mich. 534, 246 N.W. 217; Hulett v. Hulett, 152 Miss. 456, 119 So. 581.
If the state had the right to contradict this witness by statements made at other times, then, of course, it had the right to introduce the signed statement of the witness after qualifying it. There is no contention here that the statement was improperly obtained. It may be conceded that this statement could not be used as substantive evidence of guilty, so far as appellant himself was concerned, but, nevertheless, it was admissible for the purpose of impeachment and there is nothing in the record to indicate that this statement was used as substantive evidence.
Hill v. State, 118 Miss. 170, 79 So. 98; Darby v. State, 121 Miss. 869, 84 So. 6; Middleton v. State, 80 Miss. 393, 31 So. 809; Allen v. State, 66 Miss. 385, 6 So. 242.
Appellant says that the court improperly refused the instruction which limited the impeaching evidence to a determination of whether the witness, Jack Wright, had lied or not — in other words, that it went only to his credibility as a witness and not substantive evidence of guilt of the appellant. If this instruction had been limited to the witnesses who testified, the instruction probably would have been correctly drawn in that it stated a correct rule of law. However, included in the instruction was a reference to Mr. O'Neill, the county prosecuting attorney, who did not testify, although he conducted the cross-examination of the witness, Wright. In view of the inclusion of Mr. O'Neill in the instruction, the court properly refused it.
Stewart v. State, 170 Miss. 540, 155 So. 347.
It is true that the county attorney undertook, in the presence of the jury, to have the witness committed for perjury. This was objected to and the court properly sustained the objection and in so many words, reprimanded the attorney and directed the jury that it should not consider anything that transpired at that time when it came to making up its verdict.
The court overruled a motion for mistrial. In view of what it did, that court, we submit, committed no error.
Hughes v. State, 174 So. 557; Logsdon v. State, 183 So. 503.
It is further true that the trial court did place the witness, Jack Wright, under a bond to await the action of the grand jury on a charge of perjury. This was done in the absence of the jury and no right of the defendant was invaded.
Pickett v. State, 139 Miss. 529, 104 So. 358.
Argued orally by Harry K. Murray, for appellant, and by W.D. Conn, Jr., for the State.
The appellant having been indicted in the circuit court of Warren county on a charge of arson, the cause was transferred to the county court where he was tried, convicted and sentenced to serve a term of four years in the state penitentiary.
One of the principal errors assigned for a reversal of the case on this appeal is that the state was permitted to introduce a witness, Jack Wright, the father-in-law of the appellant, and to treat him as an adverse witness and cross-examine him, with a view of later contradicting him, if necessary, without it first appearing that the witness had proven hostile to the state.
It appears that the appellant's store building, a two-story frame structure, for which he had paid the sum of $3750 in cash shortly before the alleged commission of the crime, was destroyed by fire at about 1:30 or 2 o'clock A.M., at a time when the building and the stock of goods situated therein were insured for the total sum of $9500; that at about 10:30 or 11 o'clock P.M. on that same night, the witness, Jack Wright, at the instance and with the assistance of the appellant, removed from the store building a large quantity of merchandise, as well as the computing scales which had been used in the store by the appellant, and loaded them on his truck, wherein they were hauled several miles away to where the witness resided; and that this witness was induced to give the officers an inventory of these goods, embodied in a signed and sworn statement covering the facts and circumstances under which the merchandise and scales had been removed from the store of appellant. He was introduced by the state at the trial and questioned at length in regard to this statement, and whereupon he admitted the correctness of the inventory, but claimed that it was untrue, as asserted in the statement, that the appellant told him on that night that he intended to burn the store. When this witness was introduced a request was made of the court by the prosecution for permission to cross-examine him, and to which request the appellant then interposed no objection. After he was cross-examined at considerable length, the county prosecuting attorney asked in the presence of the jury that the witness be committed to jail as a palpable perjurer since his sworn statement and testimony before the grand jury was claimed to be in conflict with his testimony at the trial. Thereupon, the appellant objected to this procedure and made a motion that a mistrial be entered. The county attorney then asked leave to withdraw the request, and the district attorney moved to exclude it from the consideration of the jury, and to all of which the appellant objected on the ground that a motion for a mistrial was pending. Thereupon, the court permitted the request of counsel to be withdrawn and stated to the jury: "Gentlemen of the Jury, you are instructed by the court not to consider in any manner, shape or form the remark made by counsel to the court or anyone else, in your presence, that he wanted to have the witness Wright committed under a charge of perjury. Do not let that affect you in any way whatsoever in arriving at your verdict. The remark was made improperly by counsel and is excluded in so far as your consideration of same is concerned. Bear that in mind, if you please, when you retire to make your verdict." The motion for a mistrial was then overruled.
The prosecution was not entitled to introduce and cross-examine the witness Jack Wright as an adverse witness in the absence of some showing that the prosecuting attorneys had been taken by surprise at his testimony or that he had proven to be hostile. However, no objection was interposed to this course, as heretofore stated, and the State was permitted to cross-examine the witness fully, with reference to the correctness of the inventory, and had testified to the facts and circumstances under which he removed the goods from the store, all without objection until the request was made that he be committed to jail for perjury.
We are therefore of the opinion that the errors hereinbefore mentioned were waived by the failure of the appellant to object in the first instance to Jack Wright being introduced and cross-examined as an adverse witness; and in the second instance by the court's statement to the jury hereinbefore quoted.
The trial court's refusal of an instruction requested by the appellant to the effect that the testimony of certain rebuttal witnesses contradicting the witness Jack Wright as to whether he had said that the appellant told him he was going to burn the store should not be considered by the jury as any evidence of the guilt or innocence of the appellant, but only as going to the credibility of the witness Jack Wright, is also assigned as error. While this instruction should have been given, we do not think that in view of all of the other instructions in the case the failure to grant it constitutes reversible error. The substantive testimony given by numerous other witnesses as to the facts and circumstances surrounding the alleged commission of the crime, even though circumstantial, when considered in connection with the removal of the merchandise, etc., as seen by them, was amply sufficient to warrant the jury in finding the appellant guilty. Neither do we think that the other errors complained of are of sufficient merit to justify a reversal of the case.
Affirmed.