Pigott v. State

• Decision Date: 29 June 1914
• Docket Number: 17467
• Citation: 107 Miss. 552,65 So. 583
• Court: Mississippi Supreme Court
• Parties: PIGOTT v. STATE

65 So. 583

107 Miss. 552

PIGOTT v. STATE

No. 17467

Supreme Court of Mississippi

June 29, 1914

APPEAL from the circuit court of Pike county. HON. D. M. MILLER Judge.

O. A Pigott was convicted of murder and appeals.

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

Reversed and remanded.

Price &amp Price, for appellant.

In Woods v. State, 67 Miss. 575, this court plants itself squarely on the proposition that it is erroneous to give an instruction, that the jury should consider the feeling and interest of any witness in connection with all the testimony in determining how far, if at all, they could believe such witness or consider such testimony.

This court has planted itself upon high ground in this case--"That the defendant is entitled to submit his testimony to the jury uninfluenced by any suggestions from the court." In Buckley v. State, 62 Miss. 705 this doctrine is again discussed and the rule of this court propounded so clearly that he who runs may read. There the court says: "The accused was a competent witness for himself, and it is error for the court to instruct the jury in trying one for murder, that in weighing the defendant's testimony, they should consider the interest he had in the results and that they may disregard it altogether, and that the defendant's testimony should be permitted to go to the jury without being prejudiced, impaired, or influenced by suggestions from the court as to its probable falsity.

In the Spivey case, 58 Miss. 858, this court went further and held that it was error to instruct a jury "That if the jury believed from the whole evidence that any witness or witnesses for the defendant, wilfully and knowingly testified falsely to any material facts in the case, that the jury should disregard the testimony of such witness and should disbelieve them altogether as unworthy of credit. Also condemned in Finley v. Hunt, 56 Miss. 221; Owens v. State, 80 Miss. 512; Davis v. State, 42 So. 541; Jeffreys v. State, 77 Miss. 761.

It may be argued that if there were other witnesses in the case, such instruction might refer to them, but if the court will read the special bill of exceptions, where the district attorney by his argument, taking Grace Harness out of the case, and taking Johnson out of the case, and reads the above quoted instruction to the jury, it will be seen that the state intended to direct his argument at Pigott. But it makes no difference if there were other witnesses in the case, or what the state intended, since in Townsend v. State, 12 So. 209, a Mississippi case, this court said: "It is error in a criminal case, where the defendant, though not the only witness in his own behalf, was still the only witness interested, to charge that the jury might consider the interest of any witness in connection with all the evidence in determining how far, if at all, they would believe him, as this was in effect to single out and mark the defendant for discredit." In Howell v. State, 98 Miss. 493, it is held: "This instruction unmistakably singled out the defendant and marks him for discredit by the jury, and it is not true, moreover, that because of his interest in the result of the verdict, that the jury might arbitrarily reject this evidence and refuse to consider it." It will be noted that the court holds, as a matter of law, that it cannot be said that such an instruction, even where other witnesses testify for the defendant, refer to other witnesses. It refers to all witnesses and the defendant is one of them.

In Howell v. State, supra, the court, in passing upon a similar instruction given by the circuit court, pronounces it error and dismisses it with the statement: "This instruction omits the necessary qualifying words that the false testimony should have been given wilfully and corruptly, and this instruction has been repeatedly condemned by this court, so often, that it is unnecessary to refer again to the cases."

In Wofford v. State, 99 Miss. 759, the following instruction was under review: "The court charges the jury that they have a right in passing upon the weight of the evidence of any witness, to take into consideration the interest the witness may have in the case, one way or the other, if any is shown, and in this case if they believe that any witness has testified falsely to any material matter, they have a right to reject all the testimony of such witness if they see proper."

And the attorney-general sought to save the fatal error in this instruction by citing the Waldrop case, 54 So. 66, but the court speaking through Justice SMITH, said: "The fourth instruction granted by the court at the request of the state is erroneous. It omits the qualifying clause that the false swearing must have been intentionally and corruptly done." The learned judge cites in support of that doctrine the following: White v. State, 62 Miss. 216; R. R. Co. v. Hendrick, 62 Miss. 619; Davis v. State, 89 Miss. 119; Bell v. State, 90 Miss. 104; Turner v. State, 95 Miss. 879; Waldrop v. State, 54 So. 66. The instruction in the instant case started out with the bald proposition that a jury does not have to believe a witness because he testifies in a case, inferentially telling the jury that they may disbelieve any witness who does testify in a case, and assign no reason, or rule approved by the court in refusing to believe such witness, simply disbelieving him, but the instruction in the second paragraph, after charging the jury that they do not have to believe a witness who testifies, points out clearly to them, that they may take into consideration the interest of such witness and believe or disbelieve him, as they believe the truth to be. Both propositions are false and are not founded in law or reason.

Frank Johnson, for appellee.

There were three instructions given for the state, all of which are criticized by the learned counsel for the appellant.

The first instruction is as follows: "The court instructs the jury that if you believe that any witness in this case has knowingly, and corruptly testified falsely to any material fact in this case, you may disregard such witness's testimony all together." This instruction does not offend against any of the doctrines laid down by this honorable court. In Spivey's case, 58 Miss. 858, the instruction which was condemned was too narrow. It simply told the jury that they might reject the testimony of any witness who had falsely testified.

The instruction in the present case expressly provides that the witness must have knowingly and corruptly testified falsely to a material fact in the case. The instruction is, therefore, correct and not within the condemnation that has been pronounced upon any similar instruction in any of the decisions of this court as I respectfully submit.

The second instruction is as follows: "The court instructs the jury that you do not have to believe a witness just because he testifies in the case, and in passing on the testimony of any witness, you may take into consideration the interest of such witness if he had any and believe or disbelieve any witness as you believe the truth is from all the testimony in the case." The objection made to this...