Opinion
No. 33591.
March 13, 1939.
1. HOMICIDE.
In murder prosecution where evidence was conflicting, which of the defendants did the fatal cutting and whether there was such a situation as to either of defendants as would warrant a conviction for murder or of manslaughter or whether the killing was justifiable was for jury.
2. WITNESSES.
In murder prosecution, state's cross-examination of witness at whose home killing occurred regarding whether she lived with certain individual was proper, where questions indicated that such individual was related to defendants and indicated interest or bias on part of witness, who was related to deceased, which would account for her testimony being contrary to that on behalf of state.
3. WITNESSES.
The veracity of a witness cannot be impeached by proof of unchastity.
4. WITNESSES.
Proof of unchastity of witness may be shown where it would indicate a bias or interest on the part of the witness or tend to indicate such a probability, since interest of witness is a material consideration for jury.
5. WITNESSES.
The interest of a witness is a material consideration for jury in weighing the testimony and determining its value.
APPEAL from the circuit court of Holmes county; HON. S.F. DAVIS, J.
Sandy R. King, of Durant, for appellants.
The trial court erred in permitting the state to interrogate Sally Riley, a main defense witness, as to whether or not she was guilty of the offense of unlawful cohabitation with one Buddy Ruck, over the objection of the defendants. This method of impeachment of a witness is strictly forbidden by statute, and is highly prejudicial to the merits of any case.
Section 1532, Code of 1930; Starling v. State, 89 Miss. 328, 42 So. 798; Tuberville v. State, 179 So. 340.
This court has ruled in effect that where the prosecution resorts to prejudicial tactics calculated to deny a fair trial the judgment of the court will be set aside by it.
Turner v. State, 151 So. 721.
The appellants were charged with first degree murder and this entire record shows that the defendants made out a case of self-defense, without substantial contradiction by the state's proof.
There is absolutely no conflict in the evidence of the appellants that during the fight Clarence Williams was wounded over the left eye with a brick thrown by the deceased, and twice wounded on the head with a blunt instruments, and was stabbed in the arm with a knife by Haywood McLelland, as shown by the testimony of the appellants, and the fact that appellant Williams was seriously wounded was substantiated by one of the State's witnesses Inez Unger. The overwhelming weight of the evidence, or rather the entire evidence, was in the appellants' favor that regardless of who did the cutting, it was done in defense of a boy who was "ganged up on" and who was in a serious press to save his life and limb. And the appellants were entitled to a directed verdict of not guilty on the ground of self-defense, the assailants' reputation for peace and violence having been shown to be bad.
Jarman v. State, 172 So. 869; Weathersby v. State, 165 Miss. 207, 147 So. 481.
Evidence that accused killed in the heat of passion or self-defense is insufficient to sustain murder conviction.
Pigott v. State, 107 Miss. 552, 65 So. 583; Staiger v. State, 110 Miss. 557, 70 So. 690.
Where evidence only raises issue of self-defense or manslaughter, murder conviction will be reversed.
Jones v. State, 98 Miss. 899, 54 So. 724; Cotton v. State, 31 Miss. 504; 52 Miss. 23; 58 Miss. 778; 63 Miss. 265; McGehee v. State, 138 Miss. 822, 104 So. 150.
The verdict of the jury is contrary to the overwhelming weight of the evidence and is contrary to law.
Jolly v. State, 174 So. 244.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
This court has held in a good many cases that it is proper to cross-examine a witness so as to show bias, prejudice and interest of the witness toward the crime or the perpetrators of it. This character of cross-examination is allowed for whatever it may be worth to the jury in passing upon the credibility of the witness and in determining what weight shall be given to such testimony.
Cody v. State, 167 Miss. 150, 148 So. 627; Rouse v. State, 107 Miss. 427, 65 So. 501; Hardy v. State, 143 Miss. 352, 108 So. 727; Ivy v. State, 84 Miss. 264, 36 So. 265.
We submit that this is that character of case where at least the cross-examiner had the right to inquire into such matters as would throw light upon any reason the witness might have for hostility or interest in the side for which she was testifying. We submit that this cross-examination was properly allowed; particularly do we say this in view of the fact that for two pages of the record prior to the objection, this particular type of inquiry had been indulged in without objection on the part of appellants.
Under the State's evidence, there was sufficient testimony to show that this was a malicious killing. It is true appellant attacks the credibility of the witnesses for the State, but this was a matter addressed to the jury, and it alone. Assuming that the testimony of the witnesses for the State were true, the State had a right to request these instructions and the court properly granted them.
We submit that the evidence for the State in this case is not of such character as that this court would be required to set aside the verdict, or in holding the trial court in error in overruling the motion for a new trial based on this ground. As showing the character of evidence which would require such action on the part of this court, see Thomas v. State, 129 Miss. 332, 92 So. 225; Dean v. State, 173 Miss. 254, 160 So. 584; Hinton v. State, 175 Miss. 308, 166 So. 762.
K.C. Godfrey and Clarence Williams were indicted in the circuit court of Holmes county for the murder of Morgan McLellan, and placed upon trial, K.C. Godfrey being convicted of murder and sentenced to life imprisonment, while Clarence Williams was convicted of manslaughter and sentenced to serve a term of five years in the state penitentiary at hard labor; from which judgments this appeal has been prosecuted.
The killing occurred at the home of Sallie Riley, who was giving some kind of social entertainment or dance. The deceased and two of his brothers came to the home of Sallie Riley, to attend the dance, and on arriving found that she was charging each person the sum of 5 cents to pay for the music for the occasion, which was furnished by K.C. Godfrey on his guitar. The deceased and his brothers did not know of this charge before their arrival, and did not have the small amount required. Sallie Riley, testifying as a witness, said that she requested Godfrey to play a piece, thinking that after he had done so they would pay the small amount intended to compensate him. But when Godfrey had complied with the request, and she asked Morgan McLellan and his brothers what they were going to do about it, they replied by using obscene language; whereupon she requested them to leave. She testified that they walked out on the porch of her house, continuing to misbehave; and when Clarence Williams undertook to close the door as she directed, he was assaulted by Morgan McLellan and his brothers, and struck with a brickbat or bottle — the proof as to which of these is conflicting. In the scuffle the McLellans backed Williams through the house and into the dining room, at the rear, where they were assaulting him when K.C. Godfrey entered the fray. Sallie Riley testified that Godfrey did not use a weapon in the fight with the McLellans, while other witnesses testified that he used a knife. In the affray the deceased was cut on the neck, almost severing his head from his body, and he soon expired from the wound. There was proof for the state that Godfrey did the cutting with a knife which some of the witnesses claimed to have seen; and that thereafter Godfrey stated that he had "gotten one of them" — referring to the deceased — using an opprobrious epithet, indicating malice.
There was other testimony, including that of Godfrey and Clarence Williams, to the effect that Godfrey did not use a knife, and did not have or own one at the time. Williams testified in his own defense that he did the cutting, but in self-defense, because they were assaulting him, being three to one; and that Godfrey attempted to pull his assailants off of him.
After the killing Williams left the neighborhood, and was located in a county in the Delta, and brought back for trial.
The proof was conflicting, and it was for the jury to say, on the proof submitted, who did the cutting, and whether or not there was such a situation, as to either of the defendants, as would warrant a conviction for murder, or of manslaughter, or whether the killing was justifiable. It is argued here that there was an unwarranted attack upon the testimony of Sallie Riley, at whose home the killing occurred, by reason of the state asking her if she did not live with Buddy Ricks or Buddy Ricks with her. The argument being that the questions asked and objected to indicated to the jury that Sallie Riley was unlawfully cohabiting with Buddy Ricks. It does not appear to us that the question propounded would necessarily or even probably tend to show a want of character or veracity on the part of Sallie Riley. But the question tended to show that Buddy Ricks was related to the defendants, K.C. Godfrey and Clarence Williams, and was therefore interested in the case, and that he had probably tried to talk to, or consult with, the witness. Nothing in the question indicated that there was an unlawful or emotional relation. It was intended, we think, to indicate an interest or bias on the part of the witness, Sallie Riley, who was related to the deceased, which would account for her testimony being contrary to that on behalf of the state. It is, of course, well settled that the veracity of a witness cannot be impeached by proof of unchastity but such relations may, in proper cases, be shown where they would indicate a bias or interest on the part of the witness, or tend to indicate such a probability; because the interest of a witness is a material consideration for the jury in weighing the testimony, and determining its value. Such inquiry should be cautiously and prudently made, because as a rule such questions are foreign to the issue being decided.
We have examined the other assignments of error, and we find no reversible error in the case. The defendant Godfrey was the uncle of the defendant Williams, and whether he was guilty of murder or manslaughter, or whether he was innocent, were questions for the jury.
The judgment is affirmed.
Affirmed.