Church v. State
| Decision Date | 04 October 1937 |
| Docket Number | 32717 |
| Citation | 176 So. 162,179 Miss. 440 |
| Court | Mississippi Supreme Court |
| Parties | CHURCH v. STATE |
1 WITNESSES.
To impeach a witness by a previous statement, witness must, by proper predicate, be apprised of time, place, and persons present, and the particular impeaching matter must be distinctly brought to his attention.
2. CRIMINAL LAW. Witnesses.
In prosecution of mother and son for murder of father, admission of evidence as to son's testimony at inquest that he saw mother in bed with a man not her husband, and as to other circumstances indicating that wife and such man were too intimate, was prejudicial error, where son had not been asked on cross-examination whether he had stated that he saw them in bed together on one occasion, since proper predicate had not been laid.
3. CRIMINAL LAW.
In prosecution of mother and son for murder of father, objection of mother's attorney to evidence that son stated at inquest that he saw mother in bed with a man not her husband on ground that the record did not show that son had been asked that question, was sufficient to show that objection was made on ground that a proper predicate had not been laid.
4. CRIMINAL LAW.
In prosecution of mother and son for murder of father, testimony of mother taken at coroner's inquest, if mother had been called and used as a witness in like manner with other witnesses at inquest, would not be "voluntary," and hence would not be admissible in prosecution of mother for murder (Const. 1890, section 26).
APPEAL from the circuit court of Neshoba county HON. D. M. ANDERSON, Judge.
Mrs. Maggie Church and another were convicted of murder and the named defendant appeals. Reversed and remanded.
Reversed and remanded.
W. T. Weir, of Philadelphia, for appellant.
We respectfully submit that the court erred in admitting the testimony of Mr. Norris Wilkerson where the witness undertook to state what the testimony of appellant was before the coroner's jury. She was brought in the custody of the officer (the sheriff) and she was sworn in as a witness, without the advice or benefit of counsel, without her own consent, after she had told the officer that she was not able to go before them. She was sworn in and testified against her will and then the witness, Mr. Posey, sheriff, and Mr. Wilkerson both testified as to what she told the jury there, thereby compelling her to give evidence against herself and then using it against her in the trial.
Section 26, Constitution of Mississippi; Farkas v. State, 60 Miss. 847; Jackson v. State, 56 Miss. 311; Steele v. State, 76 Miss. 387.
We respectfully submit that all the evidence with respect to the relationship alleged to have been with appellant is of a very damaging nature and unwarranted in this case, wherein it was sought and produced before the jury evidence of illicit relations with Oscar Tingle.
It is sought to prove improper conduct of appellant by hearsay evidence evidently coerced from the defendant William Church at a time when he is said to testify. If he voluntarily testified it could be used against him; if not, it could not be used. It certainly could not, however, be introduced against him for it is not a statement against his interest, but is a statement that he is purported to have made against appellant's interest and could not by any stretch of the imagination be admissible against appellant. If he were introducing this as a confession he should have introduced it while on his examination in chief; he could not introduce it after both sides rested.
In the case of Hathorn v. State, 102 So. 771, 138 Miss. 11, the court held that: "A confession should be offered in the proof in chief of the case and not reserved to be used in rebuttal of the testimony of the defense."
If it was offered to impeach the witness William Church it fails to measure up to the rule announced in the case of Cofer v. State, 158 Miss. 493, 130 So. 511, holding that it was error to permit impeachment of a witness on a collaternal matter.
Williams v. State, 73 Miss. 821; Blackwell v. State, 146 So. 628.
The evidence both for the state and defense all shows but one thing if it shows anything, that is, if appellant killed her husband she undoubtedly did in necessary self defense.
The only persons that could or did give an explanation of the killing were the appellant and her son. Their explanation is not in conflict with the physical facts or any other facts and is not unreasonable. Hence the peremptory instruction should have been given.
Bang v. State, 60 Miss. 571; Ayers v. State, 60 Miss. 709; Long v. State, 52 Miss. 23; Gaddis v. State, 110 So. 691; Blalock v. State, 79 Miss. 517, 31 So. 105; Jarman v. State, 172 So. 869; Weathersby v. State, 147 So. 481; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150.
W. D. Conn, Jr., Assistant Attorney-General, for the State.
On the matter of the admissibility of the confessions in the case the State submits that the evidence shown at the preliminary inquiry was sufficient to warrant the trial judge in holding them competent. We think that, under all the rules of law relating to confessions, they were clearly shown to have been freely and voluntarily made in the sense in which those terms are understood at the law. This court has held in many cases that an officer having one in custody does not have to warn such one that anything he may say may be used against him. On the other hand, the court has held that persistent questioning does not amount to coercion and a confession obtained as a result of such questioning is competent, provided no other form or species of coercion was indulged in.
But, if it should be held that the testimony of the two defendants themselves was sufficient to make it a question of fact as to whether or not coercion was used, then this court would not be authorized to reverse the trial court in its finding of competency under the decisions which are to the effect that on a conflict in the evidence the trial court's finding will not be disturbed, unless such finding is clearly contrary to the evidence.
Brown v. State, 142 Miss. 335, 107 So. 373; Stubbs v. State, 148 Miss. 764, 114 So. 827; Buckler v. State, 171 Miss. 353, 157 So. 353; Wohner v. State, 174 Miss. 428, 167 So. 622; Keeton v. State, 175 Miss. 631, 167 So. 68.
It is a general rule that parties litigant are confined in the Supreme Court to the questions which were litigated in the trial court.
Jackson v. State, 163 Miss. 235, 140 So. 683.
If there were evidence sufficient to take this case to the jury, then we do not believe this court will substitute its judgment for that of the jury in view of the fact that it has said that it will not reverse a conviction because of an insufficiency of evidence, except where the testimony is contradictory and unreasonable and so highly improbable that the truth of it becomes so extremely doubtful that it is repulsive to the reasoning of the ordinary mind.
Thomas v. State, 129 Miss. 232, 92 So. 225; Dean v. State, 173 Miss. 254, 160 So. 584; Hinton v. State, 175 Miss. 308, 166 So. 762.
Appellant and her son, William Church, were indicted, jointly tried and convicted in ...
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