Hill v. State

• Citation: 79 So. 98,118 Miss. 170
• Court: United States State Supreme Court of Mississippi
• Decision Date: 08 July 1918
• Parties: HILL v. STATE

79 So. 98

118 Miss. 170

HILL v. STATE

Supreme Court of Mississippi

July 8, 1918

March 1918

Division A

APPEAL from the circuit court of Webster county, HON. H. H. RODGERS Judge.

Pink Hill was convicted of murder and appeals.

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

Judgment reversed, and cause remanded.

McKeigney & Latham, for appellant.

We submit that evidence of contradictory statements is admissible for the purpose only, of impeaching a witness; not as proof of fact in issue. Such evidence, in its very nature could have no probative value as tending to establish a fact material to the merits of the cause. It goes to the credibility of the witness, and can go no farther. It was therefore highly improper for the district attorney to comment, as he did, on the alleged contradictory statements of the witness James West.

The trial court permitted the district attorney, over appellant's objection, to argue the contradictory statements attributed to this witness as proof of guilt. This argument is illogical and illegal; and the ruling of the court is manifestly erroneous.

The district attorney was permitted to assume, as a proven fact in the case, that James West, an eye witness of the killing, had said that appellant shot deceased, "without provocation," and that the witness was so close that the powder burned his face. Yet, such was not the testimony of the witness.

This court, in Middleton v. State, 31 So. 809, passing upon this same proposition, said: "We do not think an accused person can be lawfully convicted on what a witness said, or did not say, to another person," citing Williams v. State, 73 Miss. 820, 19 So. 826; Allen v. State, 66 Miss. 6 So. 242. The argument of assistant counsel for the state, as shown at page 61 of the record, over appellant's objection, was improper, and prejudicial to appellant's cause.

The counsel was permitted to inject the "liquor business," into the case by argument, without any evidence that liquor was the cause of the killing, or that the "liquor business" was the cause.

This argument was improper, unsupported by evidence, and should not have been allowed, timely objection being made as shown at page 61 of the record. The action of the court in permitting this argument is too clearly erroneous to require further comment. The further instruction granted at the instance of the state is erroneous, it not clearly defining the crime of murder.

Instruction No 7 for the state is erroneous. It is difficult to determine what is intended by the language of this instruction: "Situated and circumstanced as Pink Hill was when he fired at Ausby Townsend," but it, in a manner, assumes that appellant was in no danger, and in this view is too clearly erroneous to require argument or authority.

We respectfully submit that the case should be reversed and remanded.

Dunn & Patterson, for appellant.

This whole matter of contradictions on collateral and immaterial matters is thoroughly discussed in Williams v. State, 73 Miss. 820; Dank v. State, 84 Miss. 452, 36 So. 609; Davis v. State, 416 Miss. 37 So. 1017; Bell v. State, 38 So. 795, and many other authorities. It is the rule, so far as we know that it is error, and in nearly every instance, reversible error to permit a witness to be impeached upon collateral and immaterial matters. If the witness was properly impeached, under all the authorities, it was only competent as going to the credibility of the witness, James West, yet the court refused an instruction (No. 19) telling the jury that it was only to be considered as such, which instruction was amply warranted, and in all cases proper, as was expressly held by this court in the case of Owen v. State, 32 So. 152, 80 Miss. 499. Not only this, but the district attorney was permitted in his closing argument when the defendant could not reply, to argue the fact of what impeaching witness said to the jury as substantive testimony, which itself was held to be reversible error in the case of Middleton v. State, 31 So. 809.

This case was made to turn upon the contradiction as to what a negro witness who was present at the time of the difficulty said out of court, and which the negro witness himself denied. The court refused to tell the jury when asked by the defendant in a written instruction, that the contradictory statements, or the impeachment of the witness could only go to the credibility of the witness. The court thereby holding and giving to the district attorney, and his associates in the case, the right to argue it as substantive testimony as if it was a proven fact.

The charge asked by the defendant, telling the jury that impeaching testimony should not be considered as going to the guilt or innocence of the accused, but only to the credibility of the witness, should have been given and its refusal in this case is reversible error. It is, very likely that if the court had told the jury that in weighing the testimony of the witness, James West, that they should not consider against the defendant as substantive testimony, as to the guilt or innocence of the defendant, in all likelihood the defendant would have been acquitted.

We respectfully submit that this case must be reversed.

Earl N. Floyd, assistant attorney-general, for appellee.

The appellant asked and received sixteen comprehensive instructions which fairly and liberally construed the law as applied to the appellant's theory of defense. The nineteenth instruction, which was refused, is as follows:

"The court instructs the jury that the evidence of J. E. Eudy, C. B. Pittman and J. A. Spikes, contradicting the witness, James West, must not be considered by the jury as any evidence of the guilt or innocence of Pink Hill, but must only be considered as going to the credibility of the witness James West."

This instruction was palpably erroneous and properly refused. It would have been proper to instruct the jury that the evidence of these contradicting witnesses must not be considered as any substantive evidence of guilt, but to instruct the jury that their testimony must not be considered as any evidence of the guilt or innocence of the accused would render their testimony of no value whatever as competent evidence, whether to the credibility of witnesses or otherwise goes in its last analysis, to the guilt or innocence of the accused. The instruction was an attempt at a correct expression of the law but fell short of the requirements and would have confused a jury as to its meaning.

Except for the errors alleged in regard to the argument of the district attorney and the refusal of the instruction quoted above, this case presents purely a question of fact to be determined by the jury. As said before, the state's theory and evidence go to show a cold blooded murder, while the appellant's testimony would tend to prove that he acted under an apprehension of danger to himself and therefore killed the deceased in self-defense.

That the evidence supporting the state's theory is ample for the purpose, no one can deny and the jury, by its verdict having set its stamp of approval upon it, it is not within the province of this court to disturb it upon appeal. The alleged improper remarks of the district attorney, while representing perhaps rather far-fetched conclusions,...