Shaw v. State

• Decision Date: 16 June 1924
• Docket Number: 24270
• Citation: 100 So. 519,136 Miss. 1
• Court: Mississippi Supreme Court
• Parties: SHAW v. STATE. [*]

100 So. 519

136 Miss. 1

SHAW v. STATE. ^[*]

No. 24270

Supreme Court of Mississippi

June 16, 1924

Division B

WITNESSES. Testimony of accused may be impeached by showing his

contradictory testimony in committing court.

When a defendant in a criminal case testifies in his own behalf, his testimony may be impeached, just as that of any other witness by showing that he made contradictory statements in testifying in the committing court.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Yalobusha county, First District, HON GREEK L. RICE, Judge.

Emanuel Shaw was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Stone & Stone, for appellant.

The court is called on to decide whether or not a district attorney may withhold not only a part but the chief part of his case until the testimony and case of the defendant is closed, and then under the pretense of contradicting what the appellant has said about it, proceed to put on the testimony in chief that has been so improperly withheld.

This testimony is simply to the effect that Emanuel Shaw said nothing in his testimony before Laycook concerning threats or demonstrations by the deceased with a gun. All this under pretense of contradicting the defendant on the stand, when, as a matter of fact, it was substantive testimony and proper, if at all, in the state's case in chief and should have been backed up by a showing as for a confession, that is, by showing that no hope of a reward or fear of punishment was made to induce it and by a showing that the negro was informed by the officers who had him under arrest and on trial that he could exercise his privilege of remaining silent if he saw fit.

The court will observe that the testimony of Laycook and Frost, the sheriff, covers the sole proposition as to whether or not mention was made of the deceased having had a gun; no showing as to what all was said by the defendant on the stand in the lower court, no showing as to whether or nor it was in response to questions, none of these things inquired into, just the simple, naked, bald statement that something was not covered by the defendant's testimony in the local court.

All the decisions and all the textbook writers denounce this method of conducting a criminal case. Dillard v. State, 58 Miss. 389; Reddick v. State, 72 Miss. 1008, 16 So. 490; Butler v. State, 24 So. 316; Flowers v. State, 85 Miss. 591, 37 So. 814; King v. State, 74 Miss. 576, 21 So. 235.

Harry M. Bryan, Assistant Attorney-General, for the state.

Appellant alleges: That the court erred in admitting, over his objection, the testimony of J. E. Laycook, justice of the peace, and W. N. Frost, sheriff, in rebuttal.

On cross-examination the defendant swore that he testified in the committing trial before Justice Laycook; that in the committing trial he testified that the decedent had a pistol and that he drew it on him.

After the defense had rested its case the state introduced J. E. Laycook in whose court the preliminary trial was held. The testimony of Sheriff W. N. Frost was practically identical with that of Justice Laycook. We respectfully submit that the testimony of Laycook and Frost was clearly admissible in rebuttal for it flatly contradicted that which appellant adduced in his own behalf upon voluntarily assuming the position of a witness. The state had clearly made out its case in chief when it rested and there was sufficient testimony at the close of its case for the jury to be well warranted in finding appellant guilty as charged in the indictment.

The authorities cited by counsel for appellant have no application to this case. The case of Steele v. State, 76 Miss. 387, is absolutely decisive of the question under consideration. In the Steele case the court cited authorities from other states in accordance with its views. See 2 Bishop's Crim. Proc., sec. 1069.

Certainly, the state in the trial of the instant case could not have introduced the testimony of Mr. Laycook and Sheriff Frost in anticipation of the testimony of the defendant contradicted by them in rebuttal. It was not only eminently proper for the state to introduce it in rebuttal, but was in fact the only stage in the proceeding where it would have been warranted in so doing.

OPINION

SYKES, P.J.

Emanuel Shaw, ...