Jones v. State

• Decision Date: 16 January 1888
• Citation: 65 Miss. 179,3 So. 379
• Court: Mississippi Supreme Court
• Parties: ALEXANDER JONES v. THE STATE

3 So. 379

65 Miss. 179

ALEXANDER JONES v. THE STATE

Supreme Court of Mississippi

January 16, 1888

APPEAL from the Circuit Court of Chicasaw County, HON. L. E HOUSTON, Judge.

Alexander Jones, Dave Love and George Rowen were jointly indicted for the murder of Dave Wright. When the case was called the defendants asked the court to appoint counsel for them. Thereupon the court appointed T. J. Buchanan and W. D. Frazee to defend them. A severance was granted Alexander Jones and he was put on trial. Dave Love, amongst others, was examined as a witness for the State. He testified that he went to the house of one Sarah Hill about 12 o'clock on the night of the difficulty; that he saw a man lying on the steps of the house badly hurt; that Alexander Jones demanded to know who he was; that Jones then told him (witness) that he must help carry the man away, and thereupon Jones struck the man on the steps a blow in the head with an axe, and quickly rolled him up in a quilt, and that witness and Rowen carried the dead man to the depot on a plank, put him in a box car, tied some fish bars to the body, and, as the train ran by a creek threw him in; that the man was dead when the body was thrown in the creek. Witness said, "Don't know who the man was; never saw him before. I was told it was Dave Wright." The body was never recovered, and this witness was the only one who swore positively as to the death of the man who was found at Sarah Hill's door and thrown into the creek, as narrated above. Thereupon the defendant's counsel offered to show that Dave Love had stated to T. J Buchanan and W. D. Frazee, "the day before this trial while talking to them after the court had appointed them to defend the three men charged with the crime, that the man they threw in the creek was not dead, and that the way they carried him to the depot was one man on each side and supporting him under the arms, which was refused by the court as a privileged communication."

The defendant's counsel also asked this same witness, Love if he had not made different statements or confessions to different parties about the killing, and the removal of the man's body. To this there was an objection, on the ground that no predicate had been laid. The objection was sustained. The defendant was convicted, and he appealed from the judgment of the court.

Judgment reversed and cause remanded.

T. J. Buchanan, Jr., and W. D. Frazee, for the appellant.

1. It is a rule of law that no witness shall be required to answer any questions that may tend to criminate himself; yet the accomplice, when he enters the witness box with a view of escaping punishment himself by a betrayal of his co-workers in crime, yields up and leaves that privilege behind him. He contracts to make a full statement--to keep back nothing; although in doing so he may but confirm his own guilt and infamy. If he fails to do so in full--if he knowingly keeps back any portion of the history of the crime he undertakes to narrate, he forfeits his right to pardon, and may be proceeded against and convicted upon his own confession, already made. (Rex v. Rudd, 1 Cowper, 331; Com. v. Knapp, 10 Pick., 477; 2 Russell on C., 958, note a.) We think an accomplice who makes himself a witness for the people should be required to give a full and complete statement of all that he and his associates may have done or said relative to the crime charged, no matter when or where done, or to whom said. He should be allowed no privileged communications. These he has voluntarily surrendered. The enforcement of such a rule may be the only protection the party on trial has left--the only means remaining to him to meet, it may be, the perjury of the criminal upon the witness stand. 4 Michigan, Moyer & William Alderman v. The People, 423.

2. The court erred in not permitting counsel to ask witness if he had not made different statements to parties at different times. 57 Miss. Cannon v. State, 152; 3 Russell on Crimes, 561, note. The question was material; the witness was then telling about killing and the manner the man was carried off. The court failed to draw the distinction between asking if he had not made different statements for the purpose of attacking its credibility, and not for the purpose of contradiction. If we were going to contradict, then we should have laid the predicate.

T. J. Buchanan also argued the case orally.

T. M. Miller, Attorney General for the State.

1. Can a witness be compelled to disclose communications made by him to his counsel even on cross-examination, with the view of impeaching his credibility either through his answers or by calling his counsel.

In the cases cited below to maintain the negative of this proposition all the reasoning based on conditions of public policy will be found.

Whatever applies to a party may be conceded to apply to any other witness, for argument's sake, and still the principle remains.

Wharton in his work on Criminal Evidence, § 499, says "When a party offers himself as a witness it has been held that he may be asked as to his communications to his counsel (citing Woburn v. Henshaw, 101 Mass. 193), though the better opinion is to the contrary and cites:

Duttenhofer v. The State, 34 O. St. 91; Bigler v. Reyher, 43 Ind. 112; Barker v. Kuhn, 38 Iowa 395; Bobo v. Bryson, 21 Ark. 387; State v. White, 19 Kan. 445; Shepard v. Parker, 36 N.Y. 517.

In a note to § 237, 1 Gr. on Ev., it is said "moreover the client as well as the lawyer is protected from disclosing such communications," citing Hughes v. Biddvept 4 Burr. 190, and Holmes v. Brady, 1 Phil. 476.

Se also Hemenway v. Smith, 28 Vt. 701.

In Montgomery v. Pickering, 116 Mass. 229, it was held that even a party by becoming a witness in his own behalf did not lose the right to object to counsel divulging communications.

It is said that this rule of law protecting communications between counsel and client is very ancient, very sacred and universally admitted and approved.

See Crisler v. Garland, 11 S. & M. 136; Parkhurst v. McGrann, 2 Coch. 134.

2. The Court did right in sustaining objections to the general questions put to the...