Magee v. State

• Decision Date: 14 May 1945
• Docket Number: 35870.
• Citation: 22 So.2d 245,198 Miss. 642
• Court: Mississippi Supreme Court
• Parties: MAGEE v. STATE.

22 So.2d 245

198 Miss. 642

MAGEE v. STATE.

No. 35870.

Supreme Court of Mississippi

May 14, 1945

M. Ney Williams, of Raymond, and L. L. Shelton and H. C. Stringer, both of Jackson, for appellant.

Greek L. Rice, Atty. Gen., R. O. Arrington, Asst Atty. Gen., and Ross R. Barnett, of Jackson, for appellee.

McGEHEE, Justice.

Upon being convicted of the charge of having murdered Ernest Conn who was shot and killed at his cafe in the Town of Utica, the appellant, Sandy Magee, a negro, was sentenced to suffer the death penalty on account thereof, and he has prosecuted this appeal.

Among other grouns relied upon for a reversal of the case, it is assigned as error that the state was permitted to prove, over the objection of the accused, the fact that he had two years previously shot another man in the head with a pistol, and also that he had paid the expenses (for doctor and hospital bills) incurred by his victim in connection therewith; that such proof of the details of this former difficulty in which the accused was apparently at fault (although he had never been prosecuted therefor) was highly prejudicial to his rights, not only on the issue of his guilt or innocence of the crime charged in the instant case, but also on the question of what degree of punishment should be fixed by the jury.

It appears that the testimony thus complained of was elicited upon the cross-examination of one of the several witnesses introduced by the defendant to prove his general reputation of good character for peace or violence. The evidence given by other witnesses on the main issue was in sharp conflict as to whether Mr. Conn was shot after the accused had wrenced his pistol from his hand and was in possession of both weapons, or was shot by the accused in self-defense, while the deceased still held his own pistol in his hand.

In this situation, the prosecution was allowed to ask a character witness if it was not a fact that during the time the defendant 'lived near you, on your father's place, he shot another negro by the name of Tom Thomas' and 'if it was not general information throughout the community that this defendant shot this colored boy, Tom Thomas, a couple of years ago'; also, if it was not a fact that the defendant on that occasion borrowed money from the father of the witness 'to go and get this matter settled up when he shot this boy, Tom Thomas'; and whether it was not a fact that he shot Tom Thomas in the heard with a pistol at the time inquired about. All of these questions were answered by the witness in the affirmative.

While it is permissible on cross-examination, when testing the good faith and credibility of a character witness, to ask if he has not heard rumors or reports in the community of particular acts of violence imputed to the defendant which are inconsistent with the testimony then being given by the witness regarding the good reputation of the accused as to the particular trait of character inquired about, as was sought to be done in the second interrogatory above quoted and to ask whether or not he had heard of specific charges of misconduct made against the defendant in the community (Smith v. State, 112 Miss. 802, 73 So. 793) nevertheless, it is error to go into the details of the specific incidents to which the attention of the witness is directed and on which the rumors or complaints may have been based, with a view of establishing the details of the alleged misconduct as a fact instead of as a matter of reputation.

It is the general reputation of the accused that constitutes the subject matter of the inquiry, and not what the witness may know personally about his specific deeds and misdeeds. The purpose of the cross-examination is to enable the jury to properly evaluate the testimony of the character witness by ascertaining his good faith, information and accuracy, and not to produce substantive evidence of the defendant's character. Where it is manifest that the primary object of the cross-examination is not to discredit or weaken the testimony of the character witness, but to prejudice the jury against the defendant by proving as a fact that he had on a former occasion actually committed a specific crime, and it is apparent that the inquiry must have been so received by the jury to his prejudice, then the evidence thus adduced is improper. Com. v. Jones, 280 Pa. 368, 124 A. 486; Com. v. Thomas, 282 Pa. 20, 127 A. 427. In the instant case, the character witness was also asked on cross-examination if it was not a fact that while the defendant was working on the place of the father of the witness he told him to do some work and the defendant told his father 'he was not going to do it.' The Court sustained an objection to this inquiry 'as to the details of it.' But, jurors don't trouble their minds about any supposed details of a negrotelling a white man, on whose place he is employed, that he is not going to do what he is told. While it is true that the injection of this highly prejudicial incident is not specifically complained of one appeal, we mention it as being significant as to the purpose of the inquiry. Most assuredly it had no bearing on the credibility of the witness who was being cross-examined.

The cross-examination should have gone no further than to test the...