Felder v. State

• Decision Date: 25 January 1915
• Citation: 108 Miss. 580,67 So. 56
• Court: Mississippi Supreme Court
• Parties: FELDER v. STATE

67 So. 56

108 Miss. 580

FELDER v. STATE

Supreme Court of Mississippi

January 25, 1915

October 1914

APPEAL from the circuit court of Amite county. HON. R. R. JACKSON Judge.

A. G Felder was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

R. S Stewart, for appellant.

On the trial of this case as the record will disclose the court, over the defendant's objection, permitted W. H. Bates, H. C. Hughes, J. K. Harvey and other witnesses introduced on the part of the state to testify to the fact that defendant, while on oath as a witness before the coroner's jury investigating this very crime, stated that the pistol found under the steps down which the trail of blood lead, was the defendant's pistol, the force of this evidence and the value of this evidence being apparent to the court when the court will remember that this case, upon which the state depended exclusively for a conviction upon circumstantial evidence, and it further appearing to the court that if it was truly the defendant's pistol, then a strong link in the chain would have been forged around the defendant.

We submit that if there is a rule of evidence well settled in Mississippi and one that the court has repeatedly upheld, it is the rule declaring that declarations and statements made before a judicial tribunal are not admissible in evidence on the trial of the party making them, wherein he is being tried for the same offense about which he gave evidence or made a statement and the admission of this evidence must reverse this case or else the following authorities must be ignored: Josephine v. State, 39 Miss. 650; Jackson v. State, 56 Miss. 312; Farkas v. State, 60 Miss. 848; Ford v. State, 75 Miss. 104, 21 So. 524; Cooper v. State, 89 Miss. 429, 42 So. 602.

Price & Price, for appellant.

When the defendant was sworn and examined before the coroner's jury he had been charged with murder, not formally, but in fact, and as said by Judge CAMPBELL, in Farkor v. State, 60 Miss. 847; "The state having examined him as a witness, it was fatal error to thereafter introduce it in evidence against him." Such practice is condemned in Josephine v. State, 39 Miss. 613, and Jackson v. State, 56 Miss. 311, and authorities there cited.

It cannot be denied that he was under solemn oath and duty to swear the truth, and it cannot be said that he was in anywise warned of his rights, and it cannot be successfully contended that to introduce such evidence against him on the trial when he did not go on the stand in his own behalf, was greatly prejudicial.

The reasoning in the above cases is the same reasoning we invoke here.

George H. Ethridge, Assistant Attorney-General for the state.

It is argued in the brief of the appellant that it was error for the court to permit the statement made by the defendant before the coroner's jury to be given in evidence on the trial. The brief of appellant on this point is elaborate and it seems to be the main reliance of the appellant for a reversal of the case. I desire to say that the record does not show that the appellant claimed his privilege under the Constitution of not testifying to any fact that might tend to incriminate him. It is certainly the duty of a party in that situation to make the claim of privilege and if he fails to do so, it is a waiver of his rights. It is always proper and possible for a defendant to waive a right when he desires to do so or when he does not care to assert and maintain it. This is especially true when he has not been called on or accused and under necessity of answering a criminal charge. A coroner's jury, in investigating a matter of this kind must get the names of the parties who have the most knowledge concerning the matter unless such parties see proper to claim privilege against disclosing it. The appellant had never been accused of this crime and he was under no legal restraint, and if he desired to hold his peace on any proposition or a particular fact that might furnish a link in a chain of circumstances against him he should have declined to answer or have claimed privilege and if he had done this and had then been forced to answer by the coroner's jury or other authority of the state, he would have been in a situation to claim privilege, but inasmuch as he did not do so and the statement was voluntary upon his part, he cannot claim that he was forced to testify against himself. In the next place, this case does not fall within the rule about confessions of guilt and is distinguishable from the cases relied upon by the appellant to set aside this conviction. Whenever a fact disclosed by a statement made by a person not accused of crime depends, for its probative force, on some other fact or some additional testimony, it does not fall within the rule that pertains to confession--it is rather an admission than confession and it is important that the distinctions between the two be kept in mind in dealing...