Opinion
No. 35221.
March 8, 1943.
1. WITNESSES.
Witnesses to defendant's reputation for sobriety could not be asked on cross-examination whether they knew about defendant's conviction for public drunkenness, where alleged conviction was subsequent to date defendant was charged with having driven an automobile while intoxicated.
2. STIPULATIONS.
Where county attorneys had stipulated that affidavit of witness for defendant charged with driving automobile while intoxicated might be introduced at trial before justice of peace or at "any other trial" and sole objection made by district attorney on appeal in circuit court was that stipulation did not relate to trial of case in circuit court, exclusion of stipulation and affidavit was error, since "any other trial" included a trial in any court.
3. CRIMINAL LAW.
In prosecution for driving a motor vehicle while under the influence of intoxicating liquor where state's evidence was that defendant was so drunk he could not walk without staggering, and defendant's evidence was that defendant was not intoxicated at all but had drunk a bottle of beer with his supper several hours before, there was no necessity for an instruction defining the words "under the influence of intoxicating liquor" and refusal of such an instruction was not error.
APPEAL from the circuit court of Grenada county, HON. JOHN F. ALLEN, Judge.
S.C. Mims, Jr., of Grenada, for appellant.
The appellant had the right to show to the jury the fact that he had a good reputation for sobriety. Good character of a person oftentimes in criminal trials is the only safe refuge of innocence.
Sinclair v. State, 87 Miss. 330, 39 So. 522.
The learned trial court recognized this right of the appellant but destroyed the benefit of such showing by permitting the district attorney to insinuate into the record a rumor that the appellant had been convicted of being drunk subsequent to the time of the discovery of the offense he was being tried for.
8 R.C.L. 209, Sec. 204.
Evidence of bad character in rebuttal must refer to a period prior to the commission of the crime.
Neal v. State, 101 Miss. 122, 57 So. 419; 12 Cyc. 415.
The trial court erred in refusing the appellant permission to introduce the depositions of Louis F. Provine.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The appellant assigns as error that the court erred in admitting evidence that the appellant had been drunk subsequent to the time he was charged with operating a motor vehicle while under the influence of intoxicating liquor.
The court held in the case of Harris v. State, 158 Miss. 439, 130 So. 697, that where evidence of appellant's reputation for peace and violence was offered it should be limited or confined to time prior to and up to the time of the commission of the crime for which he was being tried. In the case of Wilkinson v. State, 143 Miss. 324, 108 So. 711, the court held that the state was not entitled to discredit the testimony of general reputation (deeds of violence) alleged to have been committed by the appellant since commission of the crime for which he was being tried. This error, however, was harmless in view of the evidence of the state and especially so insofar as the case at bar is concerned, for the reason that the appellant himself testified that he drank a bottle of beer and that he was driving his automobile upon the highway.
The court did not err in refusing to allow the appellant to introduce the deposition of one Louis F. Provine, which counsel for appellant states in his brief that the county attorney had agreed previously could be introduced in the trial at a later date. The district attorney objected to its introduction and the court sustained his objection. I know of no authority, and appellant cites none, that would render this ex parte statement admissible, especially when objection is made.
The appellant was convicted in the court of a justice of the peace on an affidavit charging him with driving a motor vehicle on a highway "while under the influence of intoxicating liquor," and was again convicted on appeal to the court below. According to the evidence for the state he was very drunk while driving the automobile, so much so that he was unable to drive the car in a straight line, but caused it to cross from one side of the middle of the highway to the other, and once at least from the right side to the left and onto the shoulder of the highway. When arrested he staggered so as to require assistance in walking from the car he was driving to that of the policeman who arrested him. According to his evidence he was not under the influence of intoxicating liquor at all; had drunk only a bottle of beer and that was with his supper four or five hours previous to the time he is charged with having driven his automobile while intoxicated.
He has three complaints:
1. Several of his witnesses testified that his reputation for sobriety was good. Two of these witnesses were asked by the district attorney on cross examination if they knew about the appellant's being convicted, "for public drunkenness last week in Judge McKibben's court." An objection to this question being overruled, they answered that they had heard of it. The conviction here referred to, if such there was, occurred some time after the day on which the appellant is here charged with driving an automobile while intoxicated, for which reason counsel for the appellant says, and the Assistant Attorney General admits, that evidence of it was incompetent under Wilkinson v. State, 143 Miss. 324, 108 So. 711, 46 A.L.R. 895, in which we concur.
2. A man by the name of Provine was a passenger in the automobile the appellant was driving at the time he was charged with being intoxicated. Prior to the trial of the case in the court of the justice of the peace, the county attorney entered into the following written agreement with the appellant: "It is agreed by and between Hon. Marshall Perry, County Prosecuting Attorney for Grenada County, and S.C. Mims, attorney for the defendant in the above styled case pending before the Honorable M. McKibben, Justice of the Peace, wherein the defendant is charged with driving a motor vehicle while under the influence of intoxicating liquors, that the depositions of Louis F. Provine as follows may be introduced by the defendant in said trial or any other trial relative to and connected with said act; said Provine after being sworn deposing as follows: . . ."
The substance of the affidavit is that the appellant was not under the influence of intoxicating liquor at the time he was driving the automobile. Provine was admittedly sober at that time. The appellant offered to introduce this agreement with the accompanying affidavit in evidence, but on objection thereto was not permitted so to do. The district attorney's objection thereto was "that hasn't got anything to do with this, and we object to it." In sustaining the objection the trial court said: "I don't think that is competent at this trial." In attempting to sustain the exclusion of this evidence, the Assistant Attorney General says only, "I know of no authority, and appellant cites none, that would render this ex parte statement admissible."
The evidence set forth in this affidavit was material and admissible and it should not have been excluded unless the form in which it was offered was subject to objection. We are not here concerned with the authority vel non of a county attorney to bind the district attorney by agreements with a defendant as to procedure on the trial of a case in the circuit court, for the objections here made does not raise that question. The specific objection made by the district attorney seems to be, and manifestly was so understood by the court below, that the agreement did not relate to the trial of the case in the circuit court. This we think was an error, for the language of the agreement is that the affidavit may be introduced "in said trial (referring to the trial in the court of the justice of the peace) or any other trial relative to and connected with said act." "Any other trial" includes, of course, a trial in any court.
3. The appellant was refused an instruction charging the jury that in order for it to convict him it "must believe beyond a reasonable doubt that he was under the influence of intoxicating liquors to the extent that he could not properly and legally drive a motor vehicle upon the public highways." It will not be necessary for us to decide whether a defendant charged with the crime here under consideration is entitled to an instruction to the jury defining the meaning of the words "under the influence of intoxicating liquor," or, if so, whether those words were properly defined in this instruction, for the reason that the degree of the appellant's intoxication was not here in issue. According to the evidence for the state, he was not only under the influence of intoxicating liquor, but was so much so that he could not walk without staggering. According to the appellant's evidence he was not intoxicated at all. That he had drunk a bottle of beer with his supper several hours before could have no bearing hereon, and it is highly improbable that any jury would say that he was under the influence thereof at the time he was driving this automobile if that were the only intoxicating liquor he had drunk. There being no necessity here for a definition of the words "under the influence of intoxicating liquor," no error was committed in refusing the instruction.
Reversed and remanded.