Tucker v. State

• Decision Date: 23 December 1912
• Docket Number: 16,160
• Citation: 60 So. 65,103 Miss. 117
• Court: Mississippi Supreme Court
• Parties: SAM TUCKER v. STATE

60 So. 65

103 Miss. 117

SAM TUCKER v. STATE

No. 16,160

Supreme Court of Mississippi

December 23, 1912

APPEAL from the circuit court of Perry county, HON. PAUL B. JOHNSON Judge.

Sam Tucker was convicted of burglary and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

W. S Pierce & Currie & Currie, for appellant.

The court permitted the state, over the objections of the appellant, to introduce evidence to the effect that the safe situated in said storehouse was blown open and something like three hundred and eighty dollars taken therefrom, together with the pistol alleged in the indictment to have been stolen, and also permitted the pistol to be introduced in evidence over the objections of the appellant on the ground that it was not shown that said pistol was the property of the Mahned Lumber Company, or any member of said partnership. This line of testimony is the basis of the first and second assignments of error.

In larceny ownership must be proved as laid, and where two or more persons own the property stolen, the allegation in the indictment must be according to the fact. The state will not be permitted to introduce evidence of the larceny of property other than that laid in the indictment, and to do so is error. In this case the testimony clearly shows that the pistol was not the property of the Mahned Lumber Company and that there was no allegation in the indictment with reference to the larceny of any property other than that mentioned in the indictment, yet the court permitted the state to introduce evidence of the larceny of the money from the safe testimony with reference to the larceny of the pistol (after it had been clearly shown by the state's own witness that it was the property of some third party) and the introduction of the pistol itself in evidence. This is clearly erroneous. McDowell v. State, 68 Miss. 348.

It is a well-recognized elementary principle of the law of evidence that evidence must correspond with the allegations, and be confined to the point in issue. 1 Greenleaf on Evidence, (15 Ed.), sec. 50. The same author in section 52 says, "This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable preesumption or inference as to the principal fact or matter in dispute and the reason is that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it." etc.

I respectfully submit that the testimony in this case with reference to the larceny of property other than that mentioned in the indictment falls squarely within this rule and should have been rejected. No evidence should be admitted against a defendant in a criminal prosecution unless it will throw some light upon the guilt or innocence of the defendant, and evidence which can serve no other purpose than to prejudice the minds of the jury against a defendant should be rejected.

I consider the fifth assignment of erorr sufficient to justify a reversal of this case, if it should be admitted that there were no other errors in this case. The court flatly refused to permit the defendant in this case to lay the proper predicate to contradict, or impeach, the witness, Anderson Walker, by showing that he had made a different statement before the trial jury from that made before the grand jury that returned the bill of indictment in this case.

The court also refused the defendant the right to contradict the witness Humphrey, a witness for the state, by the witness, Jim Lee, a witness for the defendant, by showing that the said witness Humphrey had made a different statement before the grand jury that returned the indictment against the defendant in this case from that made and testified to by him before the trial jury. The court refused to admit the testimony of this witness, or to permit counsel for defendant to further interrogate said witness with reverence to what transpired in the grand jury room while he was a member of that body and while the said grand jury had under consideration the case of the state against this appellant. See Hudson v. State, 56 So. 345, and authorities there cited. In the Hudson case, supra, the appellant was tried and convicted at the January term, 1911 of the circuit court of Harrison County for unlawfully retailing liquor, and was sentenced.

The court said: "In our judgment, the chief assignment of error is as follows:

"The court erred in not permitting the witness, Loren King, to answer the question, on cross-examination by the defendant, if he did not say before the grand jury in Harrison county, Mississippi when this indictment was found, that he did not buy whisky from the defendant, John Hudson, during the year 1909, or at any other time." To this question the state objected, and the objection was sustained by the court. We think this was error. This witness could not be impeached until the proper predicate had been laid."

In the case at bar, the witness Anderson Walker was asked if he did not state to the grand jury that returned the bill of indictment in this case against the appellant that he could not and would not undertake to state that the appellant was one of the men whom he and others claim to have seen pass Raglan on the evening before the burglary. To this the state objected and the court refused to premit the witness to answer the question. I submit that this was a very material inquiry. The state was relying to a great extent upon the testimony of Anderson Walker to connect the appellant with the crime charged in fact he is the only witness who can or did undertake to state with any degree of certainty that the appellant was one of the men seen traveling along the railroad in that direction that afternoon before the night of the burglary--it goes directly to one of the main points in this case--the question of identity of the accused--and I submit that the court committed fatal error in not permitting said witness to answer the question.

The only difference in the action of the court with reference to the witness, Anderson Walker, and that of his action with reference to the witness, Jim Lee, is this: the witness Walker was a witness for the state and the defendant undertook to lay the proper predicate for impeaching said witness by showing that he had made a different statement before the grand jury to that made by him before the trial jury. This the court refused to do while in the case of the witness Lee, the proper predicate had already been laid and he was put on the stand to contradict said witness. The witness Humphrey was asked on his cross-examination before the trial jury the following question: "Is it not a fact that you testified before the grand jury at the last term of court, when this indictment was found, that all that you know about it was that Sam Tucker told you that he put the charge in the safe?" to which the witness replied: "I do not remember saying that. I think I told the grand jury about what I have told the jury here, as best I remember."

I submit that the Hudson case, supra, covers this feature of this case as fully and completely as it is possible for one case to be cited as authority in the trial of another. This line of testimony was certainly relevant and material as it went directly to the credibility of the witness Humphrey.

The trial court seems to have had the idea that the witness Lee would not be allowed to testify as to what was said and done in the grand jury room under any circumstances on account of the fact that said witness was sworn not to reveal any of the secrets of the grand jury of which he was a member. This is certainly an erroneous idea. I know of no law in this state that can be said to support this view; on the other hand there are numerous authorities holding that to impeach a witness for the state on the trial of an indictment, a member of the...