Dolan v. State

• Decision Date: 14 June 1943
• Docket Number: 35278.
• Court: Mississippi Supreme Court
• Parties: DOLAN v. STATE.

13 So.2d 925

195 Miss. 154

DOLAN v. STATE.

No. 35278.

Supreme Court of Mississippi

June 14, 1943

Howard A. McDonnell, of Biloxi, for appellant.

Greek L. Rice, Atty. Gen., by R. O. Arrington, Asst. Atty. Gen for appellee.

ALEXANDER Justice.

Appellant was convicted of a brutal and unjustifiable assault and battery with intent to kill Mrs. Terrel Heidelberg, a resident citizen of Pascagoula. The testimony adduced at the trial presented an issue for the determination of the jury. We limit our examination to certain legal questions presented by the assignment of errors.

The refusal to grant the following instructions is alleged as error:

"The Court instructs the jury that if they believe from the evidence that any witness has heretofore, or on this trial sworn falsely to any material fact or facts, in this case they may disregard the testimony of each such witness altogether."

"The Court instructs the jury for the defendant that if the State fail to prove all the material allegations in the indictment, then it is the duty of the jury to find the defendant not guilty."

"The Court instructs the jury for the defendant that the jury may disregard the entire testimony of one who has wilfully testified falsely on a material matter in this case, though the testimony of any such witness be corroborated."

The first instruction is clearly erroneous as being upon the weight of the evidence and the credibility of witnesses and falls under the condemnation heretofore visited upon the so-called principle of "falsus in uno". Metropolitan Life Insurance Company v. Wright, 190 Miss. 53, 199 So. 289; Columbus & G. Ry. Co. v. Robinson, 189 Miss. 675, 198 So. 749; M. & A. Motor Freight Lines v. Villere, 190 Miss. 848, 1 So.2d 788.

The second instruction should have been refused, its chief defect being that it furnished the jury with no acceptable standard by which the quality or degree of proof should be measured.

The third instruction, in addition to its being argumentative, is subject to the same criticism directed against the first.

The crime was committed about three o'clock in the morning while the victim was asleep in bed. A long iron bar was used, and the assailant entered and escaped through a window. The witness Profit testified that he was passing the Heidelberg home about three o'clock on the morning of the assault, heard a woman scream and saw the defendant emerge from this home. The witness Danley, who lived about one hundred feet from the home of the defendant, testified that about 3:30 the same morning he heard and recognized the truck belonging to defendant and saw him standing beside it. Witness Atwood testified that he drove defendant to a point near the Heidelberg home about three o'clock the same morning. Dolan got out and requested the witness to wait there for him. The witness fell asleep and was later awakened by defendant who stated: "Quick Bill, let's get away from here, I have had some trouble."

This is not the complete testimony, but is disclosed as a background for a discussion of the next assignment of error. Shortly after the assault, bloodhounds were procured and taken to the window of the Heidelberg home where they took up the scent and followed a trail which led to the point where the witness Atwood testified defendant's truck had been parked. Some preliminary testimony as to the course followed by the bloodhounds was objected to and sustained. Other such testimony was admitted. We need not detail this evidence for the reason that the owner and trainer of the dogs later testified as to their pedigree, training and ability, and produced certificates of registration showing purity of breed, and in all respects met the tests of admissibility set out in Hinton v. State, 175 Miss. 308, 166 So. 762; and Fisher v. State, 150 Miss. 206, 116 So. 746.

On February 26, 1943, after the conviction of appellant at the November 1942 Term, a petition for a writ of error coram nobis was filed by appellant in the circuit court on the ground that appellant had discovered since the trial that two of the State's witnesses had given perjured testimony on the trial, without which, so it was asserted, a conviction could not have...