Cunning v. State

• Decision Date: 11 November 1901
• Citation: 79 Miss. 284,30 So. 658
• Court: Mississippi Supreme Court
• Parties: ALLEN CUNNING v. STATE OF MISSISSIPPI

30 So. 658

79 Miss. 284

ALLEN CUNNING v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 11, 1901

FROM the circuit court of, first district, Coahoma county. HON FRANK E. LARKIN, Judge.

Cunning the appellant, was convicted of murder and appealed. The only persons present at the time of the homicide were appellant deceased and one Robinson. Robinson testified at the trial of the case in the court below that the was accidental. To impeach the testimony of this witness the state was allowed over the objection of defendant, to introduce portions of a writing, purporting to be the substance of the material testimony of the witness, as taken down by one Bellamy at the committing trial had before John A. Suddoth, a justice of the peace. There was no certificate of the justice of the peace to the writing, no signature of the witness to it, and it was not returned to the next term of the circuit court, as required by statute. Suddoth was permitted to testify for the state that he was satisfied that Bellamy, who wrote down the testimony in his court, took down the substance of the most of the material testimony of the witnesses. On cross-examination counsel for defendant asked Suddoth the following questions: "Do you know that he took it down correctly? Do you know that he took it all down? Is it not a fact that Geo. Bellamy had great difficulty in writing it, and would get it mixed up in taking it down?" To each of these questions the state objected, the objections were sustained by the court, and exceptions were taken by defendant.

Reversed and remanded.

Fitzgerald & Maynard, for appellant.

The court undoubtedly erred in permitting the state, over the objections of the defendant, to introduce certain parts of the instrument of writing purporting to be the substance of the material testimony of the witness (Robinson) before the committing court, for the manifest reason that it was not primary evidence, but was simply a memorandum made by one Bellamy. Testimony taken down by a conservator of the peace in a criminal case brought before him for examination which the law requires him to take in writing, is not competent evidence on a trial of the case, unless the statute (code 1892, § 1463) has been fully complied with. He is required under a penalty to reduce to writing the substance of the material testimony of all the witnesses examined and to inform the accused of his right to interrogate the witnesses, and he shall certify the proceedings and testimony so taken and return them to the circuit court of the proper county before its next term. None of those requirements of law were performed by the justice of the peace, except that Mr. Bellamy did, according to the testimony of said justice, take down in writing most of the substance of the testimony of the witnesses. The accused was not advised, as far as the paper shows or the evidence in the case, of his right to interrogate the witnesses; the proceedings and testimony so taken were not certified to, nor were they returned by the justice of the peace to the next term of the circuit court, but were handed by him to one Yerger, in whose possession they remained until the trial of the case. This paper was null and void, and not competent evidence in the trial of the case. Wright v. State, 50 Miss. 332.

Monroe McClurg, attorney-general, for appellee.

The objection to Robinson's testimony before the committing court is unsound. Unlike Steele's case, 76 Miss. 387, the proven record made in the magistrate's court was introduced in this case to contradict the defendant, who voluntarily took the stand, and to contradict the only other eye-witness to the killing. The rule announced in Steele's case settles this point.

OPINION ...