Opinion
No. 28230.
October 7, 1929.
1. CRIMINAL LAW. Witnesses. Evidence that prosecuting witness was not on good terms with other parties than defendant charged with assault held properly excluded, as hearsay and as not contradicting witness.
In prosecution for assault and battery with intent to kill, where prosecuting witness testified he had not had any serious difficulty with any other person, defendant's evidence that prosecuting witness had enemies, and was not on good terms with others than defendant, held properly excluded, since it was not in contradiction of prosecuting witness, and was hearsay.
2. HOMICIDE. Where defendant's witness testified another had said he did shooting, admitting evidence that prosecuting witness was shot again subsequent to date charged held not reversible error.
In prosecution for assault and battery with intent to kill, admission of state's evidence that prosecuting witness was shot a second time on a date subsequent to one laid in indictment held not reversible error, where defendant had offered proof that another had said that he did the shooting, and this conversation with witness was subsequent to the last shooting, and such person did not tell witness that he was guilty of both crimes, including the crime then on trial.
3. CRIMINAL LAW. Where evidence was conflicting, jury's verdict will not be disturbed on appeal.
Where evidence was conflicting, case was for jury, and its verdict will not be disturbed on appeal, although appellate court would have rendered a different verdict.
4. CRIMINAL LAW. New trial for newly-discovered evidence, merely impeaching or discrediting adverse witness, held properly refused.
New trial on ground of newly-discovered evidence held properly refused, where such evidence merely impeached or discredited an adverse witness who testified at trial.
APPEAL from circuit court of Simpson county, HON.W.L. CRANFORD, Judge.
J.P. and A.K. Edwards, of Mendenhall, for appellant.
It is the well-established rule of law that the state must make out its case to a moral certainty and to the exclusion of every reasonable doubt, and until it does so, the accused is not required to do anything, and thereafter he need only to raise a reasonable doubt of his guilt to be entitled to an acquittal.
Cumberland v. State, 110 Miss. 521, 70 So. 695.
Where in a prosecution for homicide, accused, after conviction, applied for a new trial on account of newly-discovered evidence which, if true, would seriously shake a material part of the state's evidence in chief, a new trial should be granted.
Weathersby v. State, 48 So. 724; McLeary v. State, 52 So. 796; Watson v. State, 96 Miss. 396, 50 So. 627; Williams v. State, 54 So. 857.
Geo. T. Mitchell, Attorney-General, and W.A. Shipman, Assistant Attorney-General, for the state.
The court will not interfere with nor disturb the verdict of the jury on finding of facts where there is evidence to warrant it. This is true, even though the evidence might not be sufficient to convince the minds of the appellate court.
I.C.R.R. Co. v. Smith, 102 Miss. 276, 59 So. 87; Brown v. State, 103 Miss. 639, 60 So. 726; Jackson v. State, 105 Miss. 782, 63 So. 269; Wells v. State, 112 Miss. 76, 72 So. 859; Matthews v. State, 148 Miss. 696, 114 So. 896; Spight v. State, 120 Miss. 752, 83 So. 84; Chandler v. State, 143 Miss. 312, 108 So. 723.
In the circuit court of Simpson county, appellant was indicted, tried, and convicted on a charge of assault and battery with intent to kill and murder Angelo Smith. The court sentenced the appellant to serve a term of seven years in the state penitentiary. He filed a motion for a new trial in the lower court, alleging newly-discovered evidence, the gist of which was that two witnesses would swear that Angelo Smith, the prosecuting witness, had made contradictory statements out of court to them, which statements were to the effect that he did not know who shot him. The motion for a new trial was accompanied by affidavits of the attorneys and the defendant, and the affidavits of the witnesses as to the newly-discovered evidence.
On a starlight night, as Angelo Smith was returning to his home after attending a "box supper," he was shot just after he had crossed a fence, and he identified positively the appellant as the man who shot him. There were no other witnesses to the crime. The prosecuting witness was positive in affirming that the appellant did the shooting, which was as positively denied by the appellant. There were other witnesses, who testified that the appellant and other negroes were seen near the place where the shooting occurred a short time prior thereto.
First. Appellant assigns as error the action of the court in sustaining an objection as to the evidence offered by Kiley Thames on behalf of the defendant, to the effect that the prosecuting witness Smith had enemies and was not on good terms with other parties than the appellant. Smith, the prosecuting witness, had testified that he had not had "any serious difficulty with any other person," and this rejected testimony could not be said to be in contradiction of the witness, and in addition to that the testimony of Thames was purely hearsay, and for these reasons the court properly excluded the evidence.
Second. Appellant assigns as error the action of the court in allowing the state to show that Smith was shot a second time on a date subsequent to the one laid in the indictment. The appellant had offered proof to the effect that S.T. Steward, a son of the appellant, had told Kiley Thames that they had the wrong man for the shooting, that he did the shooting, and this conversation was subsequent to the last shooting, and Steward did not say to the witness that he was guilty of both, or the crime then on trial. In this state of the record, this case could not be reversed by us.
Third. It is insisted that the evidence as a whole is insufficient to sustain the verdict and judgment. There was a sharp conflict, which was submitted to the jury. "The case is peculiarly for the jury, where evidence is conflicting, and its verdict will not be disturbed, although the appellate court would have rendered a different verdict." Brown v. State, 103 Miss. 639, 60 So. 726. Also see Jackson v. State, 105 Miss. 782, 63 So. 269; Wells v. State, 112 Miss. 76, 72 So. 859; Spight v. State, 120 Miss. 752, 83 So. 84; Chandler v. State, 143 Miss. 312, 108 So. 723; Matthews v. State, 148 Miss. 696, 114 So. 816.
Fourth. It is next urged that the court should have granted a new trial on the ground of the newly-discovered evidence. The affidavits disclose that these witnesses would state that Smith had, in a conversation with them, said that he did not know who shot him. This evidence would simply have impeached the veracity of the witness. The proposed newly-discovered evidence was not substantive in nature. This court is well committed to the doctrine that there is no discretion to grant a new trial on the ground of newly-discovered evidence, when such evidence merely impeaches or discredits an adverse witness who testified at the trial. See Ennis v. Y. M.V.R.R. Co., 118 Miss. 509, 79 So. 73; Overton v. State, 101 Miss. 607, 58 So. 219; Smith v. State, 102 Miss. 330, 59 So. 96; Wilson v. State (Miss.), 97 So. 721; Campbell v. State, 123 Miss. 713, 86 So. 513.
We find no reversible error in this case.
Affirmed.