Opinion
No. 31178.
June 11, 1934. Suggestion of Error Overruled September 24, 1934.
1. CRIMINAL LAW.
Where no manslaughter instruction was requested by defendant, he cannot complain of court's failure to submit that issue to jury.
2. CRIMINAL LAW.
Instructions must be considered as a whole.
3. WITNESSES.
Where district attorney claimed to be surprised by testimony given by state's witness on cross-examination, court properly permitted interrogation of witness as to previous statements made to district attorney inconsistent with witness' testimony.
APPEAL from Circuit Court of Covington County.
Robert L. Calhoun, of Mount Olive, George Gandy and E.L. Dent, both of Collins, and R.C. Russell, of Magee, for appellant.
We respectfully submit it was prejudicial error for the state to impeach, or by innuendo, intimidate, embarrass, and discredit, Derwood Tew. The general rule is that a party cannot impeach his own witness.
Section 26, Constitution of the State of Mississippi; Dunlop v. Richardson, 63 Miss. 447; Chism v. State, 70 Miss. 753, 12 So. 852.
It is undoubtedly true that Flynt had a legal right to defend his home and to prevent crime from being committed therein.
Bowen v. State, 144 So. 230; Section 995, Code of 1930.
No greater conviction than manslaughter could be upheld.
Bergman v. State, 133 So. 208.
It will be seen that the instructions given the state precluded the jury from considering the question of manslaughter, and that is true even though no request was made for a manslaughter instruction by either side.
We beg to call the court's attention to the following well-considered cases where no manslaughter instruction was requested by either side.
Johnson v. State, 23 So. 579, 75 Miss. 635; May v. State, 42 So. 164; Cook v. State, 38 So. 110, 85 Miss. 738; Mathison v. State, 87 Miss. 739.
We respectfully submit that the testimony of the appellant made out a case of self-defense, and he was corroborated, in many respects, by the state witness, Derwood Tew, and that the peremptory instruction requested by appellant should have been granted.
Strahan v. State, 108 So. 502; Walters v. State, 122 So. 189; Byrd v. State, 123 So. 867; Gray v. State, 130 So. 150; Justice et al. v. State, 154 So. 265.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
In the absence of a statute authorizing it, a party is not allowed to discredit a witness voluntarily called by him by proof of contradictory statements previously made by the witness, unless it is shown by evidence to the satisfaction of the court that he has been deceived or misled by fraud or artifice practiced on him by the witness, and even when the foundation must first be laid for such evidence by calling attention of the witness to the time, place, and persons before whom such supposed contradictory declarations were made, and affording the witness opportunity for explanation.
1 Greenlf., Ev., pars. 444, 462; 1 Whart., Ev., pars. 549, 555; Moore v. Chicago, etc., R.R. Co., 59 Miss. 243; Dunlap v. Richardson, 63 Miss. 447; Bacot v. Hazlehurst Lbr. Co., 23 So. 481.
In the case at bar the witness had stated to state's attorneys in the consultation room certain things. He had come on the witness stand and told a story materially different from what he had related in the room. The state had been taken completely by surprise. In this state of case, it would have been permissible for the state to have put on proof to show what he had stated to them in the witness room, but it was not necessary, for the reason that the witness admitted when pinned down that he had misrepresented things to the attorneys representing the state. The jury was entitled to know what the witness had done, and the court certainly, under the circumstances, committed no error whatsoever in allowing the district attorney to bring it out in cross-examination of his own witness.
In perhaps as many as fifty cases, both civil and criminal, decided since that case (Joslin v. State, 75 Miss. 838, 23 So. 515), this court has held that all the instructions given in a case are to be considered as one instruction — they are to be read into each other.
Williams v. State, 160 Miss. 485, 135 So. 210.
Where no manslaughter instruction was requested by the defendant, he cannot complain that none was given.
Tatum v. State, 142 Miss. 110, 107 So. 418; Dobbs v. State, 142 So. 500; Grady v. State, 144 Miss. 778, 110 So. 225; Davis v. State, 157 Miss. 669, 128 So. 886.
Argued orally by E.L. Dent, for appellant.
The evidence for the state amply supports the verdict of murder, while that for appellant makes out a case either of self-defense or of manslaughter. Taking the whole evidence and reconciling its various parts, so far as possible, we think the ends of justice would have been satisfied with a manslaughter verdict, but not with one of not guilty. However, appellant did not request a manslaughter instruction, and he is therefore not in a position to complain as to that issue on appeal. Tatum v. State, 142 Miss. 110, 107 So. 418; Davis v. State, 157 Miss. 669, 128 So. 885. The instruction granted at the request of the state and of which particular complaint has been made is not, as we think, reversibly erroneous, when taken in connection with the elaborate instructions granted at the request of appellant. Moreover, the principal objections urged against the instruction have been ruled adversely to appellant in the recent case, Gurley v. Tucker (Miss.), 155 So. 189.
One of the eyewitnesses to the homicide, and who was introduced by the state, made several responses upon cross-examination which the district attorney, when entering upon the redirect examination, stated to the court came as a surprise to the state, because in conflict with statements made by the witness to the district attorney in the consultation room before the witness was introduced by the state; and, upon this statement being made by the district attorney, the court allowed him, over the objections of appellant, to develop by the witness that the witness had made statements to the district attorney before being introduced which to some extent were in conflict with his testimony on cross-examination, and that in some respects he had not made full disclosures to the district attorney on his private examination with the other witnesses before being introduced. Appellant relies upon the general rule that, "in the absence of a statute authorizing it, a party is not allowed to discredit a witness voluntarily called by him by proof of contradictory statements previously made by the witness, unless it is shown by evidence to the satisfaction of the court that he has been deceived or misled by fraud or artifice practiced on him by the witness." Dunlap v. Richardson, 63 Miss. 447. And appellant cites also Chism v. State, 70 Miss. 753, 12 So. 852, and insists that there was no fraud or artifice here.
In Dunk v. State, 84 Miss. 452, 455, 36 So. 609, 610, this court said: "The general rule is that a party cannot attack the credibility of a witness introduced by himself. In the interest of fairness and justice, and to prevent parties litigant being defeated of their just rights by trickery, certain exceptions have been ingrafted on this rule; and, while a party may never impeach the general reputation of a witness whom he introduces in certain cases, when manifestly he has been entrapped into introducing a hostile witness, and is obviously surprised by the testimony, he is not bound thereby, and may show contradictory statements previously made by the witness," when these are matters material to the issues involved in the case. Here the contradictory or inconsistent statements were made to the district attorney himself, and were substantially admitted by the witness. The examination permitted by the court was therefore within both the letter and the reason of the rule as last above stated. There seems to be practically no dissent from the holding "that a party who is surprised by unfavorable testimony given by his own witness may interrogate such witness as to previous inconsistent statements made by him," 28 R.C.L. 644; and that is exactly the situation which is here presented. See cases gathered 40 Cyc. 2693-2695, and the recent case, directly in point, Com. v. Lehman, 309 Pa. 486, 497, 164 A. 526.
Affirmed.
ON SUGGESTION OF ERROR.
The instruction complained of in this case is a copy of the one considered and upheld in Tatum v. State, 142 Miss. 110, 107 So. 418. Since the decision of the Tatum case we have been asked time and again to overrule it, and each time we have declined to do so. Again we are asked to overrule that case; we have reconsidered the question, and are of opinion that the Tatum case is sound and is not in conflict with either the Allen case, 139 Miss. 605, 104 So. 353, or the Johnson case, 75 Miss. 635, 23 So. 579.
Suggestion of error overruled.