Opinion
No. 35638.
May 8, 1944. Suggestion of Error Overruled June 5, 1944.
1. WITNESSES.
In prosecution for a murder alleged to have been committed shortly after the deceased, defendant and others left a tavern at 1 o'clock in the morning, sheriff's testimony that one jointly indicted with defendant admitted he was at the tavern when an altercation occurred between defendant and deceased shortly after midnight, was admissible to contradict codefendant's testimony in support of defense of alibi as against contention that it concerned an immaterial matter.
2. WITNESSES.
Testimony embodying a substantive fact relative to the issue, whether brought out on direct or on cross-examination, may be contradicted by proof of unsworn statement made out of court.
3. CRIMINAL LAW.
Where defendant's counsel in his argument to jury commented on prosecution's failure to produce a witness, and the district attorney subsequently commented on defendant's failure to produce a certain witness, and in both instances counsel were admonished, no prejudice was shown.
4. HOMICIDE.
Evidence supported conviction for murder.
APPEAL from the circuit court of Yalobusha county, HON. JOHN M. KUYKENDALL, Judge.
Stone Stone, of Coffeeville, for appellant.
The rule is well settled in this state that it is not competent to contradict or impeach a witness about an immaterial or collateral matter.
Cofer v. State, 158 Miss. 493, 130 So. 511; Williams v. State, 73 Miss. 820, 19 So. 826; Garner v. State, 76 Miss. 515, 25 So. 363; Jeffries v. State, 77 Miss. 757, 28 So. 948; Bell v. State (Miss.), 38 So. 795; Magness v. State, 106 Miss. 195, 63 So. 352; Ware v. State, 145 Miss. 247, 110 So. 503; Walker v. State, 151 Miss. 862, 119 So. 796; Jones v. State, 180 Miss. 210, 177 So. 35; Madden v. State, 65 Miss. 176, 3 So. 328; Jones v. State, 67 Miss. 111, 7 So. 220; Jamison v. Illinois Cent. R. Co., 63 Miss. 33.
The remarks of the District Attorney were unwarranted and constitute reversible error. The rule that the failure of either party to examine a witness equally accessible to both offers no foundation for a prejudicial inference applies to both civil and criminal proceedings.
Brown v. State, 98 Miss. 786, 54 So. 305; Smith v. State, 187 Miss. 96, 192 So. 436; Garrett v. State, 187 Miss. 441, 193 So. 452; Crawford v. State, 112 Ala. 661, 21 So. 64; State v. Cousins, 58 Iowa 250, 12 N.W. 281; State v. Rosier, 55 Iowa 517, 8 N.W. 345; Brock v. State, 123 Ala. 24, 26 So. 329; State v. Fitzgerald, 68 Vt. 125, 34 A. 429; People v. Quimby, 6 Cal.App. 482, 491, 92 P. 493; Peoples v. Fowler, 104 Mich. 449, 62 So. 572; Mutual, etc., Co. v. Perkins, 81 Ark. 87, 98 S.W. 709; Scoville v. Baldwin, 27 Conn. 316; Sears v. Duling, 79 Vt. 334, 65 A. 90; Malone v. Gates, 87 Mich. 332, 339, 49 N.W. 638; Jordan v. Austin, 161 Ala. 585, 50 So. 70; Louisville, etc., R. Co. v. Sullivan, etc., Co., 126 Ala. 95, 27 So. 760.
The testimony of the prosecuting witness, Margaret Hunt, was shown to have been entirely unreliable and no conviction could possibly be had without a belief of her testimony. She admitted perjury for many months and gave three separate and distinct reasons for this perjury. She repeatedly contradicted herself about important matters in this litigation, showed herself generally unreliable and irresponsible.
Greek L. Rice, Attorney-General, by George H. Ethridge, Assistant Attorney-General, for appellee.
Testimony embodying a substantive fact relevant to the issue, whether brought out on direct or on cross-examination, may be contradicted by proof of unsworn statements made out of court.
Williams v. State, 73 Miss. 820, 19 So. 826.
Test of whether fact inquired of in cross-examination for purpose of contradicting or impeaching witness is collateral is: Would cross-examining party be entitled to prove it as part of his case?
Walker v. State, 151 Miss. 862, 119 So. 796; Ware v. State, 145 Miss. 247, 110 So. 503; Magness v. State, 106 Miss. 195, 63 So. 352; Butler v. State, 179 Miss. 865, 176 So. 589.
While it is improper for either party to comment on the other's failure to introduce a witness equally available to each, where one party does comment, the opposite party may reply thereto.
Archer v. State, 140 Miss. 597, 105 So. 747; Ransom et al. v. State, 149 Miss. 262, 115 So. 208; Sullivan v. State, 155 Miss. 629, 125 So. 115; Winters v. State, 142 Miss. 71, 107 So. 281.
The testimony of the witness, Mrs. Margaret Hunt, is reasonable in the essentials for making out the case against the appellant. Her testimony is corroborated in the most vital particulars and is as consistent as you will ordinarily find in that of an illiterate woman, nineteen years old, unaccustomed to court proceedings and unacquainted with legal rules when subjected to the vigorous, skillful, and prolonged examination on cross-examination by the distinguished and expert attorney representing the appellant in the trial.
It is well settled in this state that unchasity itself is not a ground for disbelieving a witness.
Alabama V.R. Co. v. Thornhill, 106 Miss. 387, 63 So. 674; Tucker v. Tucker, 74 Miss. 93, 19 So. 955, 32 A.L.R. 623; McMasters v. State, 81 Miss. 374, 33 So. 2. Gerald Chatham, of Hernando, for appellee.
The court did not err in allowing the witness, A.I. Shaw, Jr., to be contradicted by the testimony of Frank Hyde. The testimony offered was to a material, vital fact and not to a collateral issue. That is, were Alfred Shaw and Aaron Heafner in an automobile below Fred's Place on the Coffeeville-Grenada Road with the deceased, Jimmy Deskin, and Margaret Hunt at around one o'clock on the night in question? If Shaw was in Charleston at the time and went from there to Fred's Place, he certainly did not leave Fred's Place with Heafner and get to Coffeeville and go to bed before eleven o'clock. His whole testimony going to exonerate Heafner is that he was with him from sundown until eleven o'clock and that he was in the places he testified to and that he and Heafner carried Mrs. Hunt to Coffeeeville and that he (Shaw) left Heafner there and did not accompany him further.
Lee v. State, 137 Miss. 329, 102 So. 296; Williams v. State, 73 Miss. 820, 19 So. 826; Cofer v. State, 158 Miss. 493, 130 So. 511; Ware v. State, 145 Miss. 247, 110 So. 503; Walker v. State, 151 Miss. 862, 119 So. 796; Carr v. State, 175 Miss. 102, 166 So. 363; Porter v. State, 180 Miss. 731, 178 So. 475; Butler v. State, 179 Miss. 865, 176 So. 589; Mackie v. State, 138 Miss. 740, 103 So. 379; Bradford v. State, 166 Miss. 296, 146 So. 635; Witt v. State, 159 Miss. 478, 132 So. 338; Kehoe v. State, 194 Miss. 339, 12 So.2d 149.
We think that this was a material matter about which it was clearly competent to contradict the witnesses, and that it comes within the rule laid down in the Williams case, supra, that whilst the unsworn statement out of court may be used to contradict the sworn statement in court, whether the statement sought to be contradicted is made by the witness on his direct examination or on his cross-examination, in either case the statement in court must be one embodying a fact substantive in its nature and relevant to the issue made in the case.
The test of whether facts inquired of in cross-examination are collateral is: Would cross-examining party be entitled to prove it, as part of the case?
Cofer v. State, supra.
The exception to the argument of the District Attorney cannot bring about of reversal. Counsel for the defendant brought in the matter when he brought up the question of failure of the state to use the witness, Tatum, and it was simply in reply to this that the District Attorney asked why the defendant did not introduce its subpoenaed witness.
Mitchell v. State, 176 Miss. 873, 170 So. 534; Archer v. State, 140 Miss. 597, 609, 105 So. 747.
It was not reversible error and no substantial damage could be shown by the comment. It is not every case where comment on failure to introduce witnesses equally available requires reversal.
Smith v. State, 187 Miss. 96, 192 So. 436.
The court's ruling amounted to a sustaining of the objection and no motion for new trial was requested.
Wells v. State, 162 Miss. 617, 139 So. 859; Hathaway v. State (Miss.), 13 So.2d 819; Aldridge v. State, 180 Miss. 452, 177 So. 765.
Regardless of whether the matters complained of were error or not, they certainly do not amount to reversible error, for after reading the record it manifestly appears that the defendant was guilty.
Wiltcher v. State, 99 Miss. 374, 54 So. 726; House v. State, 121 Miss. 436, 83 So. 611; Wells v. State, 96 Miss. 500, 51 So. 209; Jones v. State, 104 Miss. 871, 61 So. 707, 979.
Argued orally by W.I. Stone, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant Aaron Heafner and Alfred Shaw were jointly indicted for the murder of Jimmy Deskin, a soldier stationed at Camp McCain. There was a severance and Heafner was tried alone and convicted and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.
The errors assigned and argued which are of sufficient merit to require discussion by the court, are: The admission of the testimony of Hyde, the ex-sheriff of the county, contradicting the witness Shaw; remarks made by the District Attorney in his closing argument; and that the evidence was insufficient to justify a conviction. The principal witness for the state was Mrs. Hunt, who resided at the hotel in Coffeeville; and the principal witnesses for appellant were himself and his co-defendant Shaw, their evidence, if true, established an alibi.
Circle Inn is located on Highway 7 about a mile south of Coffeeville, and Fred's Place is about a half mile south of that place on the same highway. Both places appear to belong in the category of what is commonly known as roadhouses — liquor, dancing, etc.
The deceased Deskin was found on the highway near Fred's Place something like 3 or 4 o'clock in the morning of June 17, 1943, suffering from injuries from which he died soon thereafter in the Camp McCain Hospital, where he had been carried. He had head injuries and his body was badly crushed and several bones broken.
Mrs. Hunt testified that she and Heafner and Shaw had been together a large part of that night; that they were dancing and carousing at both of those places until about 1 o'clock on the morning of the 17th, when they left Fred's Place in Shaw's car, taking Deskin with them; that she and Deskin were on the back seat of the car, Shaw was driving and Heafner was on his right; that they went only a short distance when Deskin began to kiss her; that thereupon Shaw stopped the car and Heafner struck Deskin over the head with an iron wrench and then turned the wrench over to Shaw and suggested that he do likewise, which he did; that thereupon Deskin fell over against her; that they then got out and pulled Deskin out of the car and laid him on the highway and ran the automobile over his body several times; that after so doing they drove to Coffeeville and exchanged Shaw's car for Heafner's, and Shaw left them and went to his home, and she and Heafner then drove to Grenada and went to the Goody Restaurant and ate something, and returned to Coffeeville before daylight.
Shaw and Heafner both testified that they returned to Coffeeville not later than 11 o'clock that night and Shaw went home and went to bed; and Heafner corroborated Mrs. Hunt's testimony in the main in reference to the trip to Grenada and return. Both denied any part in the murder.
Mrs. Hunt testified that when Heafner returned her to the hotel that morning he "hollered" to the keeper of the hotel not to say anything about his being there at that time of night. The keeper of the hotel and his wife testified that they heard no such request. A soldier testified that he was at Fred's Place considerably after 11 o'clock that night and Heafner, Shaw and Mrs. Hunt were all there. Hyde, the sheriff, testified that the next morning in a conversation with him Shaw told him that he was present at Fred's Place when a certain altercation occurred between Deskin and Fred. Other testimony in the case was to the effect that that altercation took place after 12 o'clock that night. This evidence was admitted over appellant's objection, and that action of the court is assigned and argued as error. It is contended that it was a contradiction on an immaterial issue. There is no merit in the contention. It was very material whether or not Shaw and Heafner were at Fred's Place as late as 12 o'clock. Both of them testified they were not. Shaw's statement to the sheriff was in effect a contradiction of his alibi testimony. "Testimony embodying a substantive fact relevant to the issue, whether brought out on direct or on cross-examination, may be contradicted by proof of unsworn statements made out of court." Williams v. State, 73 Miss. 820, 19 So. 826.
Heafner's counsel in his argument criticised the District Attorney for not putting Captain Tatum on the witness stand, to which the District Attorney objected. The District Attorney in his closing argument criticised the defendant for not putting a certain witness on the stand, to which the defendant objected. In both instances the court directed counsel to stay within the record. Defendant's counsel did not move for a mistrial. In other words, the record shows that one side was as guilty as the other of improper argument. We do not think Heafner was prejudiced thereby. "The failure of either party to examine a witness equally accessible to both is not a proper subject of comment before the jury by either of the parties, . . . but when as here counsel for one party comments on the failure of the other to introduce such a witness, counsel for the other party may rely thereto and indulge in proper comment thereon." Archer v. State, 140 Miss. 597, 105 So. 747, 748. The conviction in that case was affirmed.
The question whether the evidence was sufficient to sustain the conviction we think must be answered in the affirmative. It is true that the main witness for the state, Mrs. Hunt, was of low moral character. She was 19 years of age and had a child 5 months old, which the evidence tended to show was a bastard although she claimed to have a husband. However, the character of Heafner and Shaw was no better, they both had wives. In addition, Heafner had a son in the army 19 years of age. According to their own admission on the witness stand they spent that night carousing. Their guilt was a question for the jury to decide and not this court. They saw the witnesses and heard them testify and noticed their deportment and manner while testifying. In many cases, and especially in a case of this character, those are very important considerations.
Affirmed.