Stampley v. State, 47464

• Decision Date: 22 October 1973
• Docket Number: No. 47464,47464
• Citation: 284 So.2d 305
• Parties: Claude Albert STAMPLEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 305

284 So.2d 305

Claude Albert STAMPLEY v. STATE of Mississippi.

No. 47464.

Supreme Court of Mississippi.

Oct. 22, 1973.

Fred C. Berger, Natchez, for appellant.

A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Presiding Justice.

Claude Albert Stampley was indicted by the Grand Jury of Adams County, Mississippi, on a charge of the burglary of the residence of Fred Berrett. He was tried, convicted and sentenced to serve a term in the Mississippi State Penitentiary for a period of our (4) years.

The testimony offered by the state shows that the appellant and one Curtis Martin broke into the home of Fred Berrett along about eight to twelve o'clock on April 29, 1971, and took two (2) television sets, silver plate and other property belonging to Fred Berrett. They then conveyed the property to New Orleans, Louisiana, and sold it. They were stopped by a policeman in New Orelans on a traffic infraction. The officer noticed the property in the truck and he took the serial numbers of the television sets. He testified at the trial and corroborated the state's witness, an accomplice who had previously pled guilty to burglary.

The appellant has appealed and now contends that the judgment of the trial court should be reversed, and the appellant granted a new trial, because it is said that the lower court erred in allowing the district attorney to bolster the testimony of an accomplice, and that the trial court erred in permitting one deputy sheriff to take the jury to lunch and in permitting another deputy sheriff to enter the jury room at a time when some of the jurors were in the room.

An examination of the testimony in this case has convinced us that there is ample evidence in the record from which the jury could properly determine the guilt of appellant. There are, however, two propositions raised by the appellant which are of sufficient gravity to require a response from this court.

During the trial the accomplice testified that the defendant was with him at the time they burglarized the residence of Mr. Berrett. On cross-examination, the attorney for appellant sought by his examination to show that the accomplice had been promised a parole in order to get him to testify as to the guilt of the defendant. The witness denied this accusation. He was then asked if he had not told an attorney that Claude Albert Stampley had nothing to do with the burglary prior to the trial. The witness denied making such a statement. Thereafter, on re-direct examination, the district attorney asked the witness:

'Now, think now. Had you ever told anyone about going to New Orleans with the defendant before you talked with Mr. Prospere?

A. I told Mr. E. J., the chief deputy.

Q. And when was it you told him?

A. That was in '71.'

The attorney for the appellant then objected:

'Now, I object to bolstering the testimony of this witness.'

The court overruled this objection, and the appellant now contends that this was a reversible error.

Bolstering testimony is a form of hearsay evidence and this testimony has been the subject of much discussion by the text writers and by the courts. Our own court has had much to say on this subject.

In the case of Gholar v. State, 203 Miss. 371, 35 So.2d 706 (1948) this court in a rather strong opinion said:

'We have had frequent occasion to rule that it is error to permit the state to bolster the testimony of its witness that he had stated to others out of court what he states in court as the facts; and when that statement is upon the sole or dominant issue in the case, we have held the error reversible. Typical of such a case is Phillips v. State, 177 Miss. 370, 171 So. 24. If we were to hold that a transgression of the rule is harmless if and when the bolstered witness takes the stand and there reaffirms the statement, the rule would amount only to an academic declaration and had as well not be declared at all. It is only when we can say, from the record, that no other verdict could have been reached by an honest jury, that we could pronounce the error harmless, and we do not think this is such a case.' 203 Miss. at 375, 35 So.2d at 707.

In Gholar, the state offered the prior declaration made by the witness as a part of the res gestae. This court, however, went beyond the necessity of declaring that the evidence was not a part of the res gestae in order to condemn the practice of bolstering the testimony of a witness.

In the case of Phillips v. State, 177 Miss. 370, 171 So. 24 (1936) where the state was permitted to show that the prosecuting witness had said to others at the scene of the alleged crime that he had been robbed, this court held that the introduction of this evidence was a reversible error. In that case, however, this court recognized that there is at least one exception to the rule, namely-in rape cases.

A great many courts hold that prior consistent statements of a witness are admissible where his testimony is attacked as a recent fabrication and that it is sufficient to permit the prior statements if the evidence discloses an attempt to impeach the witness. See cases cited in Sweazey, Administrator v. Valley Transport, Inc., 6 Wash.2d 324, 107 P.2d 567, 111 P.2d 1010 (1940), 140 A.L.R. 1, Annot. at 21 (1942); 20 Am.Jur. Evidence § 458, at 404 (1948).

A better rule, which seems to have been followed by the greater weight of authority, is that prior consistent statements of a witness are admissible when his credibility has been attacked by proof of prior inconsistent statements for the purpose of rebuttal; (Annot. 140 A.L.R. 59 (1942); 55 Am.Jur. Witnesses § 821, at 459 (1948); 98 C.J.S. Witnesses § 620, at 631-632 (1957)) provided the witness denies...