Summary
In Payne v. State, 204 Miss. 455, 37 So.2d 743 (1948), defendant was convicted of grand larceny, but on appeal the conviction was reversed because of the trial court's refusal to permit certain surrebuttal testimony.
Summary of this case from Mattox v. StateOpinion
December 13, 1948.
1. Witnesses — rebuttal to impeach alibi.
The accused had testified as a witness to prove an alibi, and he was asked, by way of laying a proper predicate, whether he had not approached a state's witness with a request that the witness falsely support the alibi, and the accused denied it. Thereupon the state's witness was introduced in rebuttal and he testified that such a request was made of him by the accused: Held that the rebuttal testimony was competent, not as in the nature of a confession, but as going to the credibility of the alibi.
2. Witnesses — surrebuttal to impeach rebuttal testimony.
When in rebuttal a state's witness testified that the accused approached him with a request that the witness testify falsely in support of an alibi, it was error to refuse to allow the accused and his attorney to testify in surrebuttal that the said state's witness had approached the accused and offered to "swear him out" if the accused would pay him a stated sum, especially when the prosecution was based upon the testimony of two alleged accomplices, and the alibi was strongly supported by the testimony in behalf of the accused.
Headnotes as revised by McGehee, J.
APPEAL from the circuit court of Simpson County; HOMER CURRIE, J.
R.C. Russell, for appellant.
We pass to a consideration of the assignment of errors which challenges the court's action in refusing to permit appellant's counsel to properly prove by him just what Budges and Loften said to him while in jail about who had part in the cattle business and that they were going to put everything on him if he didn't hire them a lawyer and make their bond, and the court sustained that the State's objection to most of this testimony, after doing so appellant's attorney requested that Budges and Loften be recalled for further cross-examination so as to lay the predicate for all these two accomplices had said to him, in view of their own conduct in connection with this whole affair, and in support of our contention on this point we call the court's attention to the case of McCall v. State, 29 So. 1003, in which the court said that, "Where on a trial for manslaughter the defendant laid the predicate to impeach a witness for the State by asking him whether he did not tell a certain person, at a specified time and place, that he (witness) took a pistol from the person of deceased, after he was killed, to which witness answered "No," it was error to refuse to permit defendant to show by such person that the witness did make such statement."
The court said further in the case of Hicks v. State, 49 So. 524 that, "Where one had been convicted for fighting before a Justice of the Peace with a third person testifying on the trial for a third person for assault with intent to murder during the fight, and stated that he had made a certain statement in Justice's court, the exclusion of the testimony of the Justice to impeach him was erroneous, the predicate for the impeaching testimony having been laid, especially where the court refused permission to accused to recall the witness to lay the predicate more particularly."
This Hicks case supports appellant's contention on this assignment, and shows that the court erred in its ruling on this point; in fact, the two cases are about as near alike as any two cases you will ever find reported.
The State having closed its case, appellant moved the court to exclude the testimony and to instruct the jury to find for the defendant. It was appellant's idea that the State had failed to prove ownership of the cattle, beyond a reasonable doubt, while it has proven that the cattle was in Jean Carter's pasture and that he claimed them, but this did not prove ownership beyond a reasonable doubt. Carter or someone else who knew that he either raised or purchased the cattle was the only legal way the ownership could have been established, and this being true appellant was entitled to a directed verdict.
The State and appellant having both rested their respective cases in chief, then the State introduced its star witness, W.L. Fairley, under pretense of a rebuttal witness, and the fifth assignment presents this serious question.
Under all the rules of procedure this testimony should have been offered in chief, as it was in the nature of a confession, and took the defense by surprise, as it was not expecting this sort of an attack. The State had rested its case in chief and so had the defendant, then came the State with W.L. Fairley as a pretended rebuttal witness, who testified that appellant had tried to get him to give in false testimony and appellant upon cross-examination of this witness laid the predicate to impeach him, by asking him if he had not approached appellant and his attorney a day or two before the trial and offered to swear him out, and that he knew enough to clear appellant, but appellant and his attorney refused to have anything to do with him, as it was apparent that he must have been looking for money, and after appellant failed to use Fairley, he did like Budges and Loften, went over to the State. It is practically certain that the jury would not, under the facts and circumstances disclosed by record, have convicted appellant, if it had not been for the testimony of Fairley, that after Fairley had thus testified, appellant offered himself and his attorney as witnesses to impeach Fairley, the predicate having been properly laid for this impeaching testimony, the State objected to appellant and his attorney testifying to impeach Fairley and the court sustained the objection and refused to allow any testimony to impeach or rebut the testimony of Fairley. The court's uniform refusal to tolerate and approve this sort of practice, not only in criminal but in civil cases as well, is too well known in our State to require the citation of the authorities, but in support of our contention, we want to call the court's attention to the following line of cases, decided by our own court, the first of which is the case of Reddick v. State, 16 So. 490, in which the court held, "That, where in a prosecution the State rests its case without producing its chief witness, and for that fails to prove its case, it is error to overrule motion for a judgment of acquittal. In such a case it is error to permit such witness to subsequently testify, under the pretense of introducing evidence in rebuttal."
The prosecution in the case at bar held its chief witness back, to offer him in rebuttal under the pretense of rebuttal testimony, yet that did not change the rule, because appellant had already made his motion to exclude the evidence and to direct the jury to find the appellant not guilty, and that brings the instant case squarely within the holding of this Reddick case, and furthermore, if this testimony was to be admitted, then certainly the appellant had the right to impeach the witness giving the testimony.
In the case of Magee v. State, 21 So. 130, the court held that,
"One who has testified to defendant's whereabouts at the time of the robbery may be impeached, by showing that at another trial she had testified that at the time he was at another place."
Again the court held in the case of Flowers v. State, 37 So. 814, that,
"In homicide, a witness for defendant testified that deceased approached defendant with a gun in his hand, and snapped the gun at him and defendant shot deceased as the latter threw the gun up a second time after having put in another cartridge. The defense having rested, the State introduced for the first time a witness who testified that he saw deceased an hour before he died, and the latter said he made no attempt to shoot the defendant. Held that this testimony for the State was not rebuttal of that for the defendant, but was direct testimony, which should not have been permitted in rebuttal in the absence of a showing that it came to the State's knowledge after the conclusion of its testimony."
Certainly if this character of testimony should not be admitted, but if it is admitted, under all the rules of procedure, the witness giving in such testimony would be subject to impeachment.
In the case of Bowles v. State in 40 So. 165, the court said among other things that, "The predicate being properly laid, contradictory statements about a material made outside of the court are properly admitted to impeach a witness."
It is the universal rule adhered to by all courts, that any witness, in any criminal or civil case, can be impeached on any material matter, if the predicate is laid therefor; that presents the exact situation in the instant case, and this rule was correctly announced in the case of Wilkerson v. State, 108 So. 711, in which this court said that, "In prosecution for murder, refusal to permit defendant to question State's witness relative to statements made morning after killing that deceased had thrown defendant and another police officer `right and left, for purpose of laying predicate to discredit testimony that killing was not in self-defense, held erroneous." In this same case in the same opinion the court stated further that, "Testimony of State's witness may always be discredited in proper manner."
Geo. H. Ethridge, Assistant Attorney General for appellee.
The appellant complains of the court's refusal to permit appellant's attorney to prove by appellant that the State's power witness, Barber, and also Lige, told him while they were all in jail that if he did not hire them an attorney and get them out on bond that they would lay the whole thing on him. These witnesses were examined in regard thereto but the objection of the State prevented their testifying as to such statements. I submit that the matter involved was not a material element of the offense and should not have been introduced by the appellant as original testimony in the case.
The fifth assignment of error is that the court erred in refusing to permit the appellant to offer or allow himself and his attorney to testify in rebuttal or to impeach the witness, W.L. Fairley, who (according to appellant's brief) had given most damaging testimony in rebuttal to appellant's testimony at a time and under circumstances when it was late in the trial for the appellant to find out about this witness. That the court refusing to allow appellant to rebut or impeach this witness was to deny him the equal protection of the law.
While the defendant was on the stand as a witness in his own behalf, a predicate was made to impeach his testimony as to a request by him to get the witness, W.L. Fairley, to testify that on the night of the stealing of the cattle appellant had taken Fairley to Mount Olive so as to establish an alibi. This witness stated that appellant wanted him to testify that he carried witness to Mount Olive on the night the cattle were stolen and that he would not agree to this. That he would not so testify because it was wrong. That appellant did carry witness to Mount Olive after the cattle were stolen. On cross examination witness Fairley was examined with reference to this alleged statement. This cross examination was objected to several times and then the State rested. Counsel then asked to testify in rebuttal but the district attorney objected and the objection was sustained. The jury was then retired. It will be seen from the testimony that while appellant was on the stand he was asked (for the purpose of laying a predicate) as to whether or not he had asked Fairley to testify that appellant had carried Fairley to Mount Olive on the night in question. Appellant denied making such statement. Witness Fairley testified that he did approach him at a cafe and asked that Fairley so testify. It seems to me that the court should have permitted the defendant and counsel to testify that said Fairley had offered to testify in their own behalf but I submit that counsel should have stated to the court, into the record, just what he proposed to testify with reference thereto and what he proposed for the defendant to testify. I submit that it is not reversible error for the court to have excluded this offer of counsel for defendant to testify in rebuttal without a more definite showing as to what their testimony would be. I furthermore submit that the appellant having been examined with reference to that statement on cross examination, he should have shown that which he wished to testify at that time. It is doubtful if impeachment of the kind asked was permissible. Appellant had already denied making the offer to Fairley. It is my understanding of the rule that any fact relevant to a material fact in evidence is itself relevant and if Fairley had been examined while he was a witness for the State as to what he would testify, that this statement was relevant to the issue because the veracity and credibility of Fairley was necessarily a relevant factor in weighing his testimony. I submit, however, that the matter is not reversible error because it is carrying collateral matter to an extreme length.
The appellant, Hilburn Payne, and Joe Daniel Barber, Douglas Budges and Lige Loften were indicted for the theft of two cows of the value of $50 each, and allegedly the personal property of Jean Carter. The said Douglas and Loften each entered a plea of guilty to the charge, but Budges was later permitted to withdraw such plea and was then tried and convicted of the said charge of grand larceny. Loften asked leave to withdraw his plea of guilty but this request was denied. They were both sentenced to the penitentiary for the stealing, and they testified as witnesses for the State against the appellant Hilburn Payne. It is said that the other defendant, Barber, was eluding the vigilance of the arresting officers and had not been taken into custody at the time of the appellant's trial.
(Hn 1) The appellant was convicted primarily on the testimony of the two accomplices, Budges and Loften, and that of one W.L. Fairly, the latter being introduced by the State in rebuttal to testify that the said defendant approached him on Saturday night before the trial and requested that the witness testify that the defendant carried him to Mt. Olive on the night the cattle were stolen, the idea being that this testimony, if given, would have supported the defendant's defense of an alibi. The proper predicate had been laid when the defendant was on the stand as a witness in his own behalf as to whether or not he had thus approached the witness and made such a request, and he denied having done so. Therefore, this testimony was competent, not as being in the nature of a confession of guilt by the defendant and hence constituting proper evidence in chief for the State but as an alleged attempt to induce the witness to testify falsely in support of the defendant's alibi.
(Hn 2) However, after the witness Fairley had testified, the defendant offered to prove by himself and his attorney that on the contrary the witness Fairly had approached them and offered that if the defendant would give him $5 or $6 he would come to the trial and "swear him out." The court declined to permit this proof in surrebuttal, stating that the predicate had been laid while the defendant was on the stand for the proof in rebuttal to the effect that the defendant had requested the witness to swear that the defendant carried him to Mt. Olive on the occasion in question, and that this closed the matter. But, we are of the opinion that it was error not to permit the defendant and his attorney to testify as to the offer of the witness to "swear him (the defendant) out" if they would pay him to do so. The testimony of the witness Fairley was calculated to be very prejudicial to the defendant, and he was entitled to make this additional proof, and to thus further impeach the credibility of said witness, especially in view of the fact that the prosecution was otherwise based entirely on the testimony of the two accomplices as to the guilt of the defendant, and his defense of an alibi was strongly supported by the evidence on his behalf.
Then, too, the defendant had testified that these accomplices had told him while they were in jail about who were present when the cattle were stolen and to whom they were sold, and that unless he got his father to get them a lawyer and make bond for them they were going to also put it on him.
The owner of the cows did not testify at the tral. Their ownership was shown by circumstantial and hearsay evidence, and under all of the facts and circumstances, the Court is of the opinion that the cause should be reversed and remanded for a new trial.
The other errors assigned as to the failure to grant a continuance, and in regard to the insufficiency of the instruction as to ownership of the property are taken care of by a reversal of the case.
Reversed and remanded.