McMasters v. State

• Decision Date: 30 November 1903
• Court: Mississippi Supreme Court
• Parties: SAMUEL MACKMASTERS v. STATE OF MISSISSIPPI

35 So. 302

83 Miss. 1

SAMUEL MACKMASTERS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 30, 1903

FROM the circuit court of Tishomingo county. HON. EUGENE O. SYKES Judge.

Mackmasters was indicted for the murder of Uriah Mackmasters, his own father, was tried three several times and convicted on each trial of manslaughter. The case has twice before been in the supreme court and the conviction on each of the former appeals was reversed, see Mackmasters v. State, 81 Miss. 374, and Mackmasters v. State, 82 Miss. 459.

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

Affirmed.

Candler & Sawyer, for appellants.

The court below erred in permitting the state to read to the jury, over the objection of the defendant, parts (and not the whole) of what the state claimed was the testimony of appellant delivered at a former trial.

Defendant objected because first, the proffered evidence was incompetent; second, because it was proposed for the state to read in evidence only a part of the testimony of defendant given in the trial of this case in 1902; third, because the district attorney did not propose to read the whole of the testimony in the record, and fourth, the proffered evidence is in line with confessions testified to by other witnesses in that trial which defendant went on the stand to explain and to contradict in certain respects.

After same was read to the jury, the defendant moved to exclude it from the jury, and on the motion to exclude, offered to prove by a witness that before defendant made any statement of any kind, either on the witness stand or off, the defendant asked the witness, "Do you reckon they would hang a fellow for killing his daddy in self-defense?" and that the witness said "I don't know. They would be liable to send him to the pen for five or ten years," and that defendant then said, "What would you do? Would you help a fellow out if they sent him there?" and witness said "Yes, I would be willing to help you out myself."

This statement of the defendant as read to the jury was incompetent for several reasons. It was incompetent because no foundation of any kind whatever was laid for its introduction. It was not even shown that there had been a trial of this cause at a former term of the court. It was not shown that the record as read was true and a correct copy or transcript from the original notes of the stenographer, and it was not shown that the testimony so transcribed by him was given in open court, and that it was in substance true and correct, and it was not shown that this testimony was read from the record of the former trial as signed and certified to by the judge of the court. In fact no foundation of any kind whatever was made or offered to be made before the introduction and the reading of this record to the jury. In the case of State v. Belden, 33 So. 572, the court holds that it is necessary for the foundation to be laid in order to introduce the testimony of a witness certified to by a stenographer.

The statement was simply a confession of the defendant which the state proposed to introduce and did introduce over his objection. The defendant offered to show by a witness that his confession was made after the promise of the witness to help appellant out in case of his conviction "for killing his daddy in self-defense," and that he made no statement of any kind, either on the stand or off the stand, until after this promise was made to him by the witness who was the deputy sheriff.

It was in substance the same confession made in the jail which was held by this court in its last decision in this case to be incompetent.

The statement as read to the jury was also incompetent for the reason that the district attorney only read parts of it and left out parts thereof, over the objections of the defendant. The law requires as we understand it, that if any of the statement is read, then all of it must be read.

This certainly was error for the reason that this court has expressly held in the case of Coon v. State, 13 Smed. & M., 250, that "the rule is well settled that statements or confessions of the party to be affected, must be delivered to the jury precisely as made. 2 Phillip's Evidence, n. 224, p. 247; 1 Bishop's Crim. Procedure, sec. 1241; People v. Navis, 3 Cal. 106; People v. Murphy, 39 Cal. 52; Harrison v. State, 20 Tex. App., 387; Browm v. Commonwealth, 33 Am. Dec., 263; People v. Gelabert, 39 Cal. 663; Wharton on Crim. Ev., sec. 667; 6 Am. Rep., 249, and note entitled "Confessions subsequent to one induced by improper influence."

There was not sufficient proof upon which to find the defendant guilty and the motion for new trial should have been sustained and the verdict set aside on the insufficiency of the evidence if not on the absolute want of evidence.

J. N. Flowers, assistant attorney general, for appellee.

Three different juries, thirty-six men, have passed upon the evidence against this man, and all have declared him guilty. They had the accused before them, they heard the witnesses testify, they heard the defense of able counsel, they knew of reversals by the supreme court, yet they persist in a verdict of guilty. His neighbors and peers continue to declare him guilty; he surely must be a guilty man.

As to the contention of counsel that the record from which appellant's testimony on a former trial was read was not properly authenticated, that no foundation was laid for its admission, it is sufficient to say that this objection was not made at the hearing, nor is it contained in the motion for a new trial.

The contention urged here with the greatest vigor is that the court committed an error in allowing the district attorney to read parts of the record without reading it all. It does not appear how appellant was thus harmed. The court extended to counsel of defendant the privilege of reading the omitted parts if they saw fit, and this they failed to do. If there were any omitted parts which were exculpatory or modifying, then counsel ought certainly to have shown this fact to the court and demonstrated the threatened injury. They do not even now show that any harm was done, but simply recline at ease upon an alleged abstract proposition that where part of a record is read it must all be read. It does not appear but that the state read, in every instance, all the defendant had said upon any fact about which he was testifying. It does not appear that there was anything omitted in the readings from the record that would, in any manner, have modified that which was read. Counsel refused to ward off a threatened injury, or to cure an accomplished one by making use of a remedy extended to them, preferring to rely upon a reversal because of a supposed fatal error. This is as simple as trapping for pet pigs; it is playing with the court.

But there is no such abstract proposition as that relied upon by counsel, and it cannot be found in the authorities cited by them.

In discussing incomplete statements as to confessions, it is held that such are admissible "where there are no circumstances suggesting that the confession was incomplete and would be modified if all that the accused said was before the jury." And if there was further confession which would modify the statement proved, then it is proper for the accused to show same by other witnesses. 6 Am. & Eng. Enc. Law (2d ed.), 576, and authorities cited. In the case at bar, counsel preferred not to show that which they now contend would have modified the parts read, although they were advised by the court that they could read the omitted parts if they saw fit.

The testimony of one given by him on a former trial of his case in which he took the...