Opinion
No. 35617.
June 12, 1944.
1. HOMICIDE.
Conflicting evidence as to accused's guilt of manslaughter and as to whether homicide was justifiable made issues for jury.
2. CRIMINAL LAW.
In murder prosecution in which accused's wife testified to facts showing homicide was justifiable but on cross-examination admitted that she told police officers shortly after killing that she had killed deceased, trial court's refusal to permit her to explain such inconsistent statements by testifying that she took the blame because husband had high blood pressure and a bad heart was reversible error.
3. WITNESSES.
A witness who has made contradictory statements as to material facts should be permitted to explain such contradictions.
SMITH, C.J., dissenting.
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
J. Ed. Franklin, L.F. Easterling, and E.B. Todd, all of Jackson, for appellant.
It was fatal error for the court to permit the state to elicit from the defendant's wife statements that she made to the police officers in the presence of the defendant and other members of the family that she, and not the defendant, was the one who fired the fatal shot, and then to refuse the defendant the right to interrogate her as to why she had so stated to the police officers.
Higgins v. State, 120 Miss. 823, 83 So. 245; Smith v. State, 193 Miss. 474, 10 So.2d 352; Huff v. State, 176 Miss. 443, 169 So. 839; Garner v. State, 76 Miss. 515, 25 So. 363; Pearson v. State, 97 Miss. 841, 53 So. 689; Davis v. State, 157 Miss. 669, 128 So. 885; Lewis v. State, 109 Miss. 586, 68 So. 785; Riley v. State, 107 Miss. 600, 65 So. 882; Code of 1942, Sec. 1689.
The state could not cross-examine the defendant's wife on a collateral matter not gone into in her examination in chief without making her its witness, and this could not be done under Section 1689, Code of 1942.
Jones v. State (Texas), 70 Am. St. Rep. 719; 70 C.J. 132, 662.
Admitting that the state had the right to interrogate the wife of the defendant about the matters complained of, which we most earnestly deny, the court committed fatal error upon refusing the defendant the right to interrogate her and have the benefit of her reasons before the jury as to why she had stated to the police officers that she was the one who fired the fatal shot.
Collins v. State, 148 Miss. 250, 114 So. 480; Nelson v. State, 129 Miss. 288, 92 So. 66; Thompson v. State, 84 Miss. 758, 36 So. 389; Ulmer v. State, 157 Miss. 807, 128 So. 749; Powers et al. v. State, 168 Miss. 541, 151 So. 730.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, and John G. Burkett, W.L. Mhoon, and Jackson, Young Phillips, all of Jackson, for appellee.
Since Magnolia Cooper was introduced by appellant as his own witness, and since the cross-examination of Magnolia Cooper in regard to her former confession in which she admitted the same and admitted that it was untrue was perfectly proper and within the law regarding cross-examinations, and since the appellant did not make any objection to the cross-examination in this regard as such but only in regard to bringing the name of the defendant into the matter, there is absolutely no merit in the argument regarding either the incompetency of Magnolia Cooper as the wife of appellant as a witness to her former confession falsely made, or as to the admissibility of the evidence in regard thereto.
The witness introduced by one party, under the rule in this state, is a witness for all purposes material to the case; and the party, on cross-examination, is entitled to interrogate him about every feature of the case, and by so doing does not make him the witness of the cross-examiner.
Chenault v. State, 154 Miss. 21, 122 So. 98.
Impeachment of a witness is accomplished in four modes, and in four only: (1) by cross-examination; (2) by proving his previous contradictory statements or acts; (3) by proof of his conviction of a criminal offense; and (4) by adducing general evidence tending to show that he is unworthy of belief on his oath. And some authorities add a fifth: by physical demonstration or experiment properly conducted.
Manning v. State, 188 Miss. 393, 195 So. 319.
See also Godfrey v. State, 185 Miss. 70, 187 So. 199; Cody v. State, 167 Miss. 150, 148 So. 627, 632.
Appellant argues that he should have had in his behalf the reasons why his witness Magnolia Cooper attempted to shield him by falsely confessing the crime before the jury. It will be noted that appellant does not attempt to urge any error in regard to Magnolia Cooper giving reasons why she made the confession to the officers, that is, why she mechanically made the statement to them, but rather that the reasons for attempting to shield her husband, the appellant, is what the appellant sought to introduce in evidence. In other words, there is no question as to the false confession of Magnolia Cooper having been freely and voluntarily made, and there is no question of duress, promise of reward or other illegal act on the part of the officers inducing Magnolia Cooper to make the false confession. The question raised by appellant centers around her attitude and act to shield the defendant himself from the crime he had committed because she said his health was bad. In the case at bar it was not a question of denying the accused the right to explain but of denying one of his witnesses who had falsely confessed the crime to shield him, the right to say that she did this because she thought the appellant was sick and should not be arrested and tried for the crime. We are wondering whether or not counsel for the appellant think that one of the defenses to the crime of murder is bad health on the part of the murderer and whether evidence as to such bad health on the part of the murderer would be sufficient to acquit him, or even an extenuating circumstance as to his punishment for such a crime. It appears clearly in the record that the only reason in the world Magnolia Cooper would give for lying to the officers about who killed Hosea Stutts was that she thought her husband's health was too bad for him to be arrested and put in jail for taking the life of this deceased. It is well to keep in mind that in the case at bar cross-examination of the defendant himself is not involved, but it is the cross-examination of a witness for him who attempted to shield him by falsely confessing the crime, whereupon she was arrested and imprisoned therefor until the investigation revealed that the appellant was the killer.
Argued orally by L.F. Easterling and J. Ed. Franklin, for appellant, and by O.W. Phillips, for appellee.
On the night of October 4, 1943, appellant, R.C. Cooper, Sr., shot and killed Hosea Stutts (both negroes). Cooper was indicted and tried for the alleged murder of Stutts, and convicted of manslaughter and sentenced to the penitentiary for twenty years. From that judgment he prosecutes this appeal.
Cooper owned a home in the City of Jackson, where he and his family lived and where the homicide occurred; and in connection therewith he ran a restaurant and pool room adjoining. Several witnesses were present, and testified as to the surrounding facts and circumstances. According to the testimony of some, Cooper was guilty of manslaughter, the crime of which he was convicted; according to the testimony of others it was a justifiable homicide. His guilt or innocence was clearly an issue for the jury.
His wife, Magnolia Cooper, testified in his behalf. If true, her testimony showed clearly that it was justifiable homicide. On cross-examination by the district attorney she admitted that some of the city police force appeared on the scene a few minutes after the killing, and that, on being questioned by them, she stated that she had killed Stutts, and not her husband. On redirect examination appellant's counsel offered to prove why she made such an inconsistent statement to the police, to which the district attorney objected. Thereupon, the court had the jury to retire. Then, in answering the question, she said she took whatever blame there was on herself because her husband had high blood pressure and a bad heart. On the state's objection that evidence was ruled out.
That action of the court is the basis of an assignment of error to which the larger part of appellant's brief and argument are addressed; and, in fact, it is the only assignment of sufficient merit to call for discussion by the court.
We are of opinion that the court erred in refusing to permit her to make the explanation. Her testimony as to the guilt of her husband was clear and forcible. If true, he was guilty of no crime. On the other hand, her statement to the police, standing alone, might lead to the conclusion that she was unworthy of belief. It appears that the reason for the statement might have had a very important bearing upon the jury as to the truth of her testimony on the witness stand. The reasonable inference, from all the facts and circumstances, is that after consulting with her husband's counsel, and after further consideration, she and her husband decided that the truth would be better for them than falsehood. There are numerous authorities for the proposition that a witness who has made contradictory statements as to material facts should be permitted to explain such contradictions. The cases on this subject are collected in 7 Ency. of Evidence, pages 142 to 147, inclusive; and 70 C.J., pages 1141 to 1144, inclusive.
For this error the appellant is entitled to a new trial.
Reversed and remanded.
DISSENTING OPINION.
Before this court is justified in reversing a judgment or decree of a lower court, two things should affirmatively appear: (1) error in the judgment or decree; and (2) that the appellant was prejudiced thereby.
The second of these elements is here absent, for it is hardly within the realm of probability that had the evidence here excluded been admitted, the jury would have been even remotely influenced thereby in the rendition of its verdict.
The judgment should be affirmed.