Brewer v. State

• Decision Date: 23 March 1970
• Docket Number: No. 45771,45771
• Citation: 233 So.2d 779
• Parties: Don Forrest BREWER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 779

233 So.2d 779

Don Forrest BREWER v. STATE of Mississippi.

No. 45771.

Supreme Court of Mississippi.

March 23, 1970.

McKoin, Zinner, Hawkins & Johnson, Biloxi, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and Timmie Hancock, Special Asst. Atty. Gen., Jackson, for appellee.

JONES, Justice.

This is an indictment for perjury. Appellant was convicted and sentenced to the state penitentiary. Although the proceedings were irregular, we feel forced to affirm.

Appellant was first convicted in a prosecution for illegal possession of narcotics. Brewer v. State, 228 So.2d 582 (Miss.1969). In that case a note listing certain items to be obtained (including narcotics) was alleged to have been written by appellant. He denied ever seeing the list. Because of this statement, he was indicted.

The State first introduced a handwriting expert who testified that a list of items, admittedly made by appellant, was written by the same person who wrote the questioned document.

The State also introduced the transcript of appellant's evidence given in the first case and identified as correct by the court reporter.

Afterwards, the State introduced the indictment of appellant in the first case, and the minutes of the circuit court showing his trial and conviction on that charge in the circuit court.

Then, to sustain the charge of materiality and falsity of appellant's testimony, and to corroborate State's one witness, there was introduced, after identification and proof of accuracy, the transcript of the evidence of all the witnesses in the first trial, including the evidence given by appellant's wife in his defense. This entire transcript was read to the jury.

No objection was made to the introduction and reading of the transcript to the jury.

No question thereto was in the motion for a new trial, nor is any in the assignment of error filed here.

The right of confrontation by witness may be waived. 16 C.J.S. Constitutional Law § 89, p. 263 (1956); 23 C.J.S. Criminal Law § 1009, pp. 1065-1069 (1961).

Competency of the wife may be waived. See Huff v. State, 176 Miss. 443, 169 So. 839 (1936). As shown by the opinion, the statute, when that case was decided was in all essential matters the same as the present, Section 1689, Mississippi Code of 1942 Annotated (1956). The husband was charged with stealing money from his wife. We quote:

At the conclusion of the state's evidence, for the first time the appellant made a motion to the effect that the appellant should be discharged because of the incompetency of Mrs. Myra Huff's testimony. This motion was by the court overruled, and thereafter the appellant testified and denied taking the money as charged.

Motion for a new trial was made, but it appears that the attorney for the appellant failed to appear and make argument to sustain the motion, and it was overruled by the court.

Had an objection been seasonably and properly interposed, it would have been error to admit Mrs. Huff's testimony upon a charge of larceny against her husband. The appellant was not charged with assault and battery upon his wife, and was not being tried for that offense.

It has been held in a number of cases that a wife is not competent to testify against her husband in a charge of crime, unless it is a personal assault upon her or an offense against her person. The words in the statute, section 1528, Code 1930, are: 'Husband and wife may be introduced by each other as witness in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.' The words 'in all controversies between them' do not apply to offenses against the law of the state under the criminal law, except where the evidence would be competent in a suit for personal violence or injury. See Finklea v. State, 94 Miss. 777, 48 So. 1; Pearson v. State, 97 Miss. 841, 53 So. 689; Doss v. State, 156 Miss. 522, 126 So. 197; and State v. McMullins, 156 Miss. 663, 126 So. 662, 663.

Whenever witnesses are offered in court who are incompetent, objection as to their competency should be made before the reception of the evidence, and certainly before the conclusion of the evidence for the state, so that the trial judge might decide that question at once. If a party does not object to the competency of a witness when presented, such objection is waived if the party knew of the facts constituting this incompetency at the time the evidence was offered. If he does not then object he, in effect, consents, and he will not be permitted to experiment with the evidence and see whether it is helpful or hurtful to him, and then later to move to have such evidence excluded, provided the facts constituting incompetency were then known. (emphasis added). 176 Miss. at 446-447, 169 So. at 840.

In Clark v. State, 181 Miss. 455, 180 So. 602 (1938), the husband was prosecuted for wilful neglect to support minor children. This case was prior to the amendment of the statute by Chapter 236, Laws of Mississippi 1954 and prior to 1954, the statute did not contain the words that such a prosecution should be deemed a controversy between husband and wife. Our Court said, after reciting that the wife was called in rebuttal and that the husband had verbally agreed to her testifying:

But appellant says that neither he nor his counsel had the legal right to waive such objection, fir the reason that the public is also interested in maintaining the peace and sanctity of the marital relation, citing Corpus Juris and textwriters on the law of evidence. Our statute, however, section 1528, Code 1930, provides that either the husband or the wife may testify in any proceeding, whether civil or criminal,...