Starling v. State

• Decision Date: 04 February 1907
• Citation: 42 So. 798,89 Miss. 328
• Court: Mississippi Supreme Court
• Parties: JAMES AND CHARLES STARLING v. STATE OF MISSISSIPPI

42 So. 798

89 Miss. 328

JAMES AND CHARLES STARLING v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 4, 1907

November 1906

FROM the circuit court of Wayne county, HON. WILLIAM H. HARDY Judge.

James and Charles Starling, appellants, were jointly tried and convicted of an assault and battery, a misdemeanor, and sentenced to pay a fine and be imprisoned in the county jail. From the conviction and sentence they appealed to the supreme court.

The appellant, James Starling, while on the stand as a witness for the defense, was, on his cross-examination, asked by the prosecution whether he had ever before been charged in any court of committing any offense. Over the objection of appellants, he was required to make answer and did so, to the effect that he had been charged with fighting and with unlawfully selling intoxicating liquors, but had never been convicted of any crime. The action of the court in allowing the prosecution to ask the question as above stated and forcing the appellant to answer the same, is assigned for error.

Code 1892, § 1746; Code 1906, § 1923, is as follows:

"Any witness may be examined touching his interests 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, and a witness shall not be excused from answering any question, material and relevant unless the answer would expose him to criminal prosecution or penalty."

Reversed and remanded.

Green &amp Green, for appellants.

This was a close case upon the facts, and it was essential that errors of law detrimental to the appellants should not have intervened. Yet, most palpable error was committed on the trial when, on cross- examination, James Starling, one of the appellants, was asked, and over objection compelled to answer, as follows: "Q. Were you ever charged in any court of committing any offense before?" "A. Yes, sir." "Q. How many times?" "A. Twice."

For one to be charged with a crime, without subsequent conviction, cannot be shown in evidence in a trial on another criminal charge. It is not legitimate to impose improper burdens upon a defendant at the bar of justice.

The mere fact that the witness had been arraigned, arrested, charged, or even tried, does not come within any recognized method of impeachment. The charge may have been maliciously made, the trial may have resulted in acquittal, the arrest may have been wrongful.

Under Code 1892, § 1746; Code 1906, § 1923, it is permissible to examine a witness only concerning ...