Dunk v. State

• Decision Date: 23 May 1904
• Citation: 36 So. 609,84 Miss. 452
• Court: Mississippi Supreme Court
• Parties: JOSEPH DUNK v. STATE OF MISSISSIPPI

36 So. 609

84 Miss. 452

JOSEPH DUNK v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 23, 1904

March 1904

FROM the circuit court of Hancock county HON. WILLIAM T. MCDONALD Judge.

Dunk appellant, was indicted, tried, and convicted of the murder of one Nix, and was sentenced to death; he appealed to the supreme court from said conviction and sentence. The opinion states the facts upon which the case was decided by the supreme court.

Reversed and remanded.

W. H. Maybin, for appellant.

The court erred in admitting, over the objection of the defendant, the testimony of J. R. and T. E. Smith to contradict the testimony of Edgar Jones in reference to a statement not made by the defendant, but a statement made by Jones, a state witness, a statement made out of the hearing and out of the presence of the defendant. It is true that, after the district attorney had put Jones on the stand and discovered that Jones' testimony was not satisfactory, he claimed that he was surprised, but that does not cure the error, because it was matter that could not have affected the guilt or innocence of the defendant, and yet, in permitting it to go to the jury, was prejudicial to the defendant.

J. N. Flowers, assistant attorney-general, for appellee.

The district attorney had been informed that one Edgar Jones would testify that he saw Dunk immediately after the killing and that he had a pistol in his hand. Dunk had been on the stand and testified that he did not have a pistol that afternoon. Jones was called as a witness for the state in rebuttal, and instead of saying that he saw Dunk with a pistol in his hand said Dunk did not have a pistol. The district attorney showed that he was taken by surprise, since he had had good reason to believe the witness would swear to the same thing he had told the two Smiths. He then put the Smiths on the stand and proved what Jones had told them. All this was permitted under the rule which affords parties some means of protection from designing or unreliable witnesses. It was for the presiding judge to determine whether the district attorney was taken by surprise. The action of the court in admitting this testimony was not error.

Argued orally by W. H. Maybin, for appellant.

OPINION

TRULY, J.

Appellant and William Parker were jointly indicted for murder. Severance was granted, and appellant placed on trial. The theory of the defendant on the trial was that the deceased came to his death in a single-handed mutual combat with Parker, the party with whom he was jointly indicted, and that he (the appellant) in no wise participated in the difficulty that he was not immediately present at the time the shooting occurred, having left the scene when it became apparent that a difficulty was impending; and that he was not armed at the time. After the testimony in chief of both state and appellant had been introduced, the state called Edgar Jones as a witness in rebuttal, and sought to prove by him that he had arrested the appellant immediately after the shooting, and that, when arrested, appellant had a pistol in his hand. Questions tending to elicit this proof, when propounded to the witness, were answered in the negative; and, while testifying to the fact of the arrest, he positively denied that the appellant had any weapon in his possession. Whereupon the district attorney claimed that he was surprised by the testimony of the witness, and was permitted, over the objection of appellant, to ask the witness if on the day of, and shortly after, the homicide, he had not stated to J. R. Smith and T. E. Smith that immediately after the shooting he had arrested the defendant, who at that time was armed, and had a pistol in his hand. The witness Jones denied having made such a statement. Thereupon the district attorney introduced said J. R. Smith and T. E. Smith, who both testified that Jones told them on the occasion in question that defendant had a pistol in his hand when arrested immediately after the...