Turner v. State

• Decision Date: 29 November 1909
• Docket Number: 13,972
• Citation: 95 Miss. 879,50 So. 629
• Court: Mississippi Supreme Court
• Parties: CLARENCE TURNER v. STATE OF MISSISSIPPI

50 So. 629

95 Miss. 879

CLARENCE TURNER v. STATE OF MISSISSIPPI

No. 13,972

Supreme Court of Mississippi

November 29, 1909

FROM the circuit court of Holmes county, HON. SYDNEY SMITH, Judge.

Turner appellant, was indicted and tried for unlawfully selling intoxicating liquors, was convicted and sentenced to a fine and imprisonment in the county jail, and appealed to the supreme court.

The only witnesses for the state were two detectives employed by the executive department of the state at a fixed compensation to ascertain where and by whom such liquors were illegally sold; and to testify as witnesses in prosecutions against parties who might be prosecuted for such sales. It was not shown in evidence that the witnesses had any direct interest in the conviction or acquittal of the appellant, or that their compensation in any way depended upon conviction. They were subjected to a severe cross examination by the defense and there was much testimony offered through witnesses for appellant in direct conflict with the testimony of the state's witnesses. The case was a close one on its facts and, in the supreme court, the principal assignment of error relied on for reversal was the refusal by the court below to grant the fourth instruction asked by appellant, set out in the opinion of the court.

Reversed and remanded.

Boothe & Pepper, for appellant.

The fourth instruction asked by appellant should have been granted because of the great conflict between the testimony of the witnesses on the part of the state and of those for the defense; and the jury had a right to know what was its province in such case. The court refused to give the jury any instruction as to what was expected and required of it in such cases.

W. J. Croom, on the same side.

In view of the character of the witnesses, and the class in. which these witnesses are placed by the law, the appellant was entitled to the fourth instruction, and the refusal by the court to grant the same worked irreparable injury to the appellant. See Vails v. State, 94 Miss. 365, 48 So. 725, in which an instruction similar to that here in question, and there given on behalf of the state, in that case was attacked by the defendant. This court there said "there was not only no reversible error, but no error at all, in giving the fourth instruction for the state." Now in this case the instructions refused to defendant, were drawn along the line of the instruction cited and instruction number four in this case, is identical with instruction number four in the Vails case, which this court there said was correct.

George Butler, assistant attorney-general, for appellee.

The most serious question presented by this appeal is the action of the court below in refusing defendant's fourth instruction. This instruction is in almost the exact language as the fourth instruction in the case of Vails v. State, 94 Miss. 365, 48 So. 725, which was approved by this court. The point made against the instruction in that case was that it pointed to the defendant. The objection against the fourth instruction in this present case, if any objection is to be made, is that it intimates to the jury that the testimony of the interested witnesses is false. If the instruction had advised the jury that it was the province of the jury, in weighing the evidence, to consider the interest of the witness, and in view of the situation and other circumstances involved, to give it such weight as it is fairly entitled to, then it would have been in exact accord with Code 1906, §§ 1915 and 1923; but as it is, it is coupled with wilful and corrupt swearing, and it really intimates to the jury that interested witnesses are guilty of false swearing.

WHITFIELD, C. J. SMITH J., dissenting.

OPINION

WHITFIELD, C. J.

The fourth instruction asked by the defendant should manifestly have been given. It was in the following words, and was refused: "The court further instructs the jury, for the defendant, that the consideration of the evidence in this case, and determining the weight thereof, and whether the witnesses should be believed or not, is exclusively the province of the jury, and in weighing the evidence in this case, and in saying whether a witness who has testified in this case should be believed, the jury have a right to take into consideration what interest, if any, such witness may have in the case; and if the jury believe from the evidence that any witness in this case has wilfully and corruptly sworn falsely as to any material thing or matter inquired of on the trial of this case, the jury have a right to disbelieve and disregard the whole and entire evidence of such witness." The exact counterpart of this instruction was given in the case of McClellan v. State, with the single exception that in this charge the word "knowingly" is omitted; but the words "willfully" and "corruptly" are used, and this instruction was expressly approved in Vails v State, 94 Miss. 365, 48 So. 725. It is not thinkable that...