Rutland v. State
| Decision Date | 11 June 1934 |
| Docket Number | 31178 |
| Citation | 155 So. 681,170 Miss. 650 |
| Court | Mississippi Supreme Court |
| Parties | RUTLAND v. STATE |
Suggestion Of Error Overruled September 24, 1934.
APPEAL from circuit court of Covington county HON. EDG. M. LANE Judge.
Homer Rutland was convicted of murder, and he appeals. Affirmed.
On suggestion of error. Suggestion of error overruled.
Affirmed. Suggestion of error overruled.
Robert L. Calhoun, of Mount Olive, George Gandy and E. L. Dent, both of Collins, and R. C. Russell, of Magee, for appellant.
We respectfully submit it was prejudicial error for the state to impeach, or by innuendo, intimidate, embarrass, and discredit, Derwood Tew. The general rule is that a party cannot impeach his own witness.
Section 26, Constitution of the State of Mississippi; Dunlop v. Richardson, 63 Miss. 447; Chism v. State, 70 Miss. 753, 12 So. 852.
It is undoubtedly true that Flynt had a legal right to defend his home and to prevent crime from being committed therein.
Bowen v. State, 144 So. 230; Section 995, Code of 1930.
No greater conviction than manslaughter could be upheld.
Bergman v. State, 133 So. 208.
It will be seen that the instructions given the state precluded the jury from considering the question of manslaughter, and that is true even though no request was made for a manslaughter instruction by either side.
We beg to call the court's attention to the following well-considered cases where no manslaughter instruction was requested by either side.
Johnson v. State, 23 So. 579, 75 Miss. 635; May v. State, 42 So. 164; Cook v. State, 38 So. 110, 85 Miss. 738; Mathison v. State, 87 Miss. 739.
We respectfully submit that the testimony of the appellant made out a case of self-defense, and he was corroborated, in many respects, by the state witness, Derwood Tew, and that the peremptory instruction requested by appellant should have been granted.
Strahan v. State, 108 So. 502; Walters v. State, 122 So. 189; Byrd v. State, 123 So. 867; Gray v. State, 130 So. 150; Justice et al. v. State, 154 So. 265.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
In the absence of a statute authorizing it, a party is not allowed to discredit a witness voluntarily called by him by proof of contradictory statements previously made by the witness, unless it is shown by evidence to the satisfaction of the court that he has been deceived or misled by fraud or artifice practiced on him by the witness, and even when the foundation must first be laid for such evidence by calling attention of the witness to the time, place, and persons before whom such supposed contradictory declarations were made, and affording the witness opportunity for explanation.
1 Greenlf., Ev., pars. 444, 462; 1 Whart., Ev., pars. 549, 555; Moore v. Chicago, etc., R. R. Co., 59 Miss. 243; Dunlap v. Richardson, 63 Miss. 447; Bacot v. Hazlehurst Lbr. Co., 23 So. 481.
In the case at bar the witness had stated to state's attorneys in the consultation room certain things. He had come on the witness stand and told a story materially different from what he had related in the room. The state had been taken completely by surprise. In this state of case, it would have been permissible for the state to have put on proof to show what he had stated to them in the witness room, but it was not necessary, for the reason that the witness admitted when pinned down that he had misrepresented things to the attorneys representing the state. The jury was entitled to know what the witness had done, and the court certainly, under the circumstances, committed no error whatsoever in allowing the district attorney to bring it out in cross-examination of his own witness.
In perhaps as many as fifty cases, both civil and criminal, decided since that case (Joslin v. State, 75 Miss. 838, 23 So. 515), this court has held that all the instructions given in a case are to be considered as one instruction--they are to be read into each other.
Williams v. State, 160 Miss. 485, 135 So. 210.
Where no manslaughter instruction was requested by the defendant, he cannot complain that none was given.
Tatum v. State, 142 Miss. 110, 107 So. 418; Dobbs v. State, 142 So. 500; Grady v. State, 144 Miss. 778, 110 So. 225; Davis v. State, 157 Miss. 669, 128 So. 886.
Argued orally by E. L. Dent, for appellant.
The evidence for the state amply supports the verdict of murder, while that for appellant makes out a case either of self-defense or of manslaughter. Taking the whole evidence and reconciling its various parts, so far as possible, we think the ends of justice would have been satisfied with a manslaughter verdict, but not with one of not guilty. However, appellant did not request a manslaughter instruction, and he is therefore not in a position to complain as to that issue on appeal. Tatum v. State, 142 Miss. 110, 107 So. 418; Davis v. State, 157 Miss. 669, 128 So. 885. The instruction granted at the request of the state and of which particular complaint has been made is not, as we think, reversibly erroneous, when taken in connection with the elaborate instructions granted at the request of appellant. Moreover, the principal objections urged against the instruction have been ruled adversely to appellant in the recent case, Gurley v. Tucker, 170 Miss. 565, 155 So. 189.
One of the eyewitnesses to the homicide, and who was introduced by the state, made several responses upon cross-examination which the district attorney, when entering upon the redirect examination, stated to the court came as a surprise to the state, because in conflict with statements made by the witness to the district attorney in the consultation room before the witness was introduced by the state; and, upon this statement being made by the district attorney, the court allowed him, over the objections of appellant, to develop by the witness that the witness had made statements to the district attorney before being introduced which to some extent were in conflict with his testimony on cross-examination, and that in some respects he had not made full disclosures to the district attorney on his private examination with the other witnesses before being introduced. Appellant relies upon the general rule...
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Moffett v. State
...Hooks v. State, 197 So.2d 238, 239-40 (Miss.1967) (must show that evidence has "taken him by surprise); Rutland v. State, 170 Miss. 650, 653-54, 155 So. 681, 681-82 (1934) (must be a situation where prosecutor was "deceived or mislead by fraud or The facts of this case make it clear that th......
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