Powers v. State

• Decision Date: 03 February 1930
• Docket Number: 28403
• Court: Mississippi Supreme Court
• Parties: POWERS v. STATE

126 So. 12

156 Miss. 316

POWERS v. STATE

No. 28403

Supreme Court of Mississippi

February 3, 1930

Division B

1. WITNESSES. In examining witness respecting conviction to impeach credibility, examination into details of crime is unauthorized, and he may not be contradicted respecting details; in seeking to impeach witness by showing conviction he may only be questioned respecting conviction, and, if he admits conviction, to name crime; if witness denies he was convicted, he may be contradicted only by proving fact of conviction without details; it was error to ask accused, to impeach his credibility, if he had not been convicted of beating wife and child and to contradict his denial (Hemingway's Code 1927, section 1656).

Under section 1656, Hemingway's 1927 Code, section 1923, Code of 1906, providing that a witness may be examined touching the conviction of any crime and his answer may be contradicted, and his interest or conviction established by other evidence, an examination into the details of the crime is not authorized, neither is a contradiction of the defendant with reference to such answers. All that is permitted is the asking as to his conviction of crime, and if he answers that he has been convicted, to name and specify the crime; and to contradict him by simply proving the fact, if he denies that he was convicted, on a specific offense or offenses without going into details. It is error, therefore, to ask a witness if he has not been convicted of beating his wife and child and to contradict his answer denying the same. Citing Dodds v. State (Miss.), 45 So. 863.

2. CRIMINAL LAW. state should not be satisfied with testimony that witness "guesses" venue was in named county; where state's and defendant's evidence together established venue, conviction will not be reversed because testimony of state witness was unsatisfactory.

In proving venue the state should not be satisfied with the answer of a witness stating that he "guesses" it was in a named county, but should establish it by more certain proof; but where the state's evidence and the defendant's evidence taken together establish the venue satisfactorily by the requirements of certainty and degree of proof, judgment will not be reversed because the state witness' evidence as to venue is insufficient or unsatisfactory.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county HON. S. F. DAVIS, Judge.

P. B. Powers was convicted of unlawfully selling intoxicating liquor, and he appeals. Reversed and remanded for new trial.

Conviction reversed and cause remanded.

Butler & Snow, of Jackson, for appellant.

It was error for the county attorney to ask appellant, over his objection, if he was not under suspended sentence for assault and battery upon his wife and son, and to show, over his objection, that he did know he was under sentence for beating his wife and son.

Section 1923 of Code of 1906 (sec. 1656, Hemingway's Code 1927); Williams v. State, 87 Miss. 373; Dodds v. State, 45 So. 863; Slayden v. State, 102 Miss. 101; Starling v. State, 89 Miss. 328; Saucier v. State, 102 Miss. 647; A. & V. R. R. Co. v. Thornhill, 106 Miss. 387; Cook v. State, 85 Miss. 137.

Evidence to contradict a witness as to collateral and irrelevant matters is incompetent.

Williams v. State, 73 Miss. 82; Davis v. State, 85 Miss. 416; Cooper v. State, 94 Miss. 480.

Venue must be proven by direct evidence or circumstantial evidence, such as is absolutely inconsistent with the theory that the offence was committed in a county other than that charged.

Ussery v. State, 123 So. 854; Dorsey v. State, 141 Miss. 600.

W. A. Shipman, Assistant Attorney-General, for the state.

Any witness may be examined touching his interest in the cause or his conviction of any crime, and his answers may be contradicted, and his interest or his conviction of a crime established by other evidence.

Sec. 1923, Code of 1906, sec. 1656, Hemingway's 1927 Code; Williams v. State, 125 Miss. 347, 87 So. 672; Helm v. State, 67 Miss. 562, 7 So. 487; Lewis v. State, 85 Miss. 35, 37 So. 497; Williams v. State, 87 Miss. 373; Jackson v. State, 75 Miss. 145, 21 So. 707; Brown v. State, 96 Miss. 534, 51 So. 273; A. & V. R. Co. v. Thornhill, 106 Miss. 387, 63 So. 674.

The accused is by statute made a competent witness in his own behalf in any prosecution for crime against him. The privilege is granted him of becoming a witness if he so desires; but, if he does, he assumes all the incidents of the position of witness.

McMasters v. State, 83 Miss. 1; Code 1892, sections 1743, 1746; Lewis v. State, 85 Miss. 35; Helm v. State, 67 Miss. 562; Williams v. State, 97 Miss. 373, 39 So. 1006; Garner v. State, 76 Miss. 515; Williams case, 73 Miss. 820.

Proof of venue is sufficiently shown in the record.

Reece v. State, 123 So. 892; 23 C. J. 39, section 1783; Hill v. State, 112 Miss. 375, 73 So. 66; Dorsey v. State, 141 Miss. 600.

OPINION

Ethridge, P. J.

Powers was convicted in the county court upon a charge of unlawfully selling intoxicating liquors. The witness who purchased the alleged whisky testified on the question of venue as follows: "Q. In what county and state? A. State of Mississippi, and this is Washington county, I guess." It was further testified that the whisky was bought on the premises occupied by the appellant at a garage, or building, about a quarter of a mile from the experiment station at Stoneville, and other testimony was to the effect that it was between Stoneville and Dunleith.

None of the witnesses, other than the first witness, stated that it was in Washington county, but it is referred to as being just across Deer creek and near the experiment station at Stoneville. When the defendant came to testify, he stated that he had lived in Washington county for the past four years and described the place on which he had lived during that time. He denied the sale of the whisky. While the defendant was testifying he was asked, on cross-examination, the questions:

"You are under suspended sentence in this court for beating your wife and son, are you not? A. No sir, I am not. Objection. Overruled.

"Q. You say you are not under suspended sentence? Objection. Overruled." No answer.

After the defendant closed his evidence, the state introduced the circuit clerk of the county as a witness; he produced two judgments of conviction of P. B. Powers on assault and battery. The judgments showed that the sentence imposed in his case was suspended during good behavior. The state then introduced Mr. Shanahan, the deputy sheriff, who testified that he was deputy sheriff in charge of the court at the time the cases were tried; that Judge Cashin and Mr. Toombs and Mr. Powers went in the back room with some preacher, and after a talk Judge Thomas called Mr. Powers to the bar and gave him a lecture. This testimony was objected to, objection was overruled, and exception taken. Mr. Shanahan continued his testimony: "About the way he beat up his wife and child and told him, at the earnest solicitation of the minister and others, and the condition of his family, that if he would go to church every week and report back to the court, he was to go with his family to Sunday School, and to report back to the court once in a while that he was so doing, and during his good behavior he would suspend his sentence. For a long time Mr....