Martino v. State

• Decision Date: 09 January 1911
• Citation: 98 Miss. 355,53 So. 777
• Court: Mississippi Supreme Court
• Parties: JOE MARTINO v. STATE

53 So. 777

98 Miss. 355

JOE MARTINO v. STATE

Supreme Court of Mississippi

January 9, 1911

October 1910

FROM the circuit court of Harrison county, HON. T. H. BARRETT Judge.

Joe Martino, appellant, was tried for unlawful retailing, was convicted and appealed to the supreme court.

He sought a reversal of the conviction, principally because of the alleged error of the court in permitting a witness for the state to testify over his objection that the witness had made a statement to the justice of the peace, the same in substance as his statement to the jury.

Judgment reversed and cause remanded.

J. H Mize and F. W. Elmer, for appellant.

The court erred in permitting the state to show by the witness Henley that he had made the same statement before Z. T Champlin, justice of the peace, as he swore to on the trial of this case.

This is certainly fatal error, most flagrant error for two reasons: First, to so permit the state to bolster up Henley's testimony by having him testify that he had made a corroborating statement at another time and place; and further, if this error did not exist, the statement itself should have been produced, or its absence accounted for, if the testimony on any principle was admissible. We are unable to find any case holding such testimony admissible.

The first case we can find where this court condemned the bolstering up of evidence in such manner is that of Madden v. State, 56 Miss. 176. In Williams v. State, 79 Miss. 555, the court said that it is not permissible to introduce previous statements made by the state's witness as corroborative of his own testimony.

The effect of this evidence was that Henley after swearing that what he said was the truth, to corroborate his testimony, testified that he had made the same statement and signed it before Z. T. Champlin, justice of the peace. If this evidence was permissible, then, if Henley had made to fifty others this same statement, it could be shown what statement he made to these fifty others.

This court condemns such testimony in the case of Owen v. State, 82 Miss. 24.

James R. McDowell, assistant attorney-general, for appellee.

There is only one point in the case upon which defendant may hope for a reversal, and that is the action of the court in permitting the district attorney to ask the state's witness if he had not made the same statement before the justice of the peace that he was then making on the trial. As a general rule, evidence of former statements are not admissible to bolster up the testimony of a witness, but in the instant case the testimony referred to was made before a justice of the peace in his official capacity and is therefore, not subject to the general objection, which is that evidence of statements on prior occasions are not admissible in support of the testimony on the trial, for the reason that such former statements are not made under oath and, therefore, are not testimony of equally high character as that given under oath on the trial; wherefore, if the evidence on oath needs bolstering up, it cannot be aided by...