Walker v. State

• Decision Date: 14 January 1929
• Docket Number: 27402
• Court: Mississippi Supreme Court
• Parties: WALKER v. STATE. [*]

119 So. 796

151 Miss. 862

WALKER v. STATE. ^[*]

No. 27402

Supreme Court of Mississippi

January 14, 1929

Division A

1. WITNESSES. It is not competent to impeach or contradict witness about immaterial or collateral matter.

It is not competent to contradict or impeach witness about an immaterial or collateral matter.

2 WITNESSES. Test whether fact inquired of in cross-examination is collateral is whether cross-examining party could, prove it as part of case.

Test of whether fact inquired of in cross-examination for purpose of contradicting or impeaching witness is collateral is: Would cross-examining party be entitled to prove it as part of his case.

3. WITNESSES. In murder prosecution, contradiction of defendant's witness' testimony that she had not made statement defendant had gone to get gun to kill deceased, was on collateral matter.

In murder prosecution, contradiction of testimony of defendant's witness on cross-examination that she had not made statement to another that defendant had gone to get a gun to kill deceased was on a collateral matter, where witness had testified that defendant went to C.'s home and procured gun and returned with it to scene of difficulty.

4. CRIMINAL LAW. In murder prosecution, admitting rebuttal testimony contradicting defendant's witness on immaterial issue whether she had said defendant went to get gun to Mil deceased) held reversible error.

In murder prosecution, admitting rebuttal testimony contradicting defendant's witness on immaterial issue of whether she had said to another that defendant had gone to get a gun to kill deceased: held reversible error, where court instructed jury that, if they be-believed any witness had knowingly sworn falsely to any material fact, they might altogether disregard witness' entire evidence, and witness was repeatedly asked whether denial that such statement was made was as true as any other fact testified to.

5 WITNESSES. Statute authorizing examination of witness regarding

conviction does not 'permit details of crime to be shown (Hemingway's Code 1927, section 1656).

Hemingway's Code 1927, section 1666 (Code 1906, section 1323), providing that answers of witness who is being examined in reference to his conviction of crime may be contradicted and his conviction established by other evidence, does not permit details of crime to be shown, and such examination should be held within limits necessary to call attention to and identify conviction being inquired about.

6. WITNESSES. In murder prosecution where accused admitted conviction for assault and battery, permitting state to show assault and battery was committed on deceased held error (Hemingway's Code 1927, sections 1653, 1656).

In murder prosecution, where accused, in examination under Hemingway's Code 1927, sections 165(r), 1656 (Code 1906 sections 1920, 1923), admitted he had been convicted of five or six misdemeanors and identified two of them as crimes of assault and battery, permitting state to pursue inquiry further and show that assault and battery was committed upon deceased held error.

HON. T. E. PEGRAM, Judge.

APPEAL from circuit court of Tippah county, HON. T. E. PEGRAM, Judge.

Walter Walker was convicted of manslaughter, and he appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Fred B. Smith, for appellant.

The test as to whether the matter is collateral is whether the party seeking to introduce it for the purpose of contradiction would be entitled to prove it as a part of his case. 40 Cyc. 272; 2 Wigmore on Evidence, 1161, sec. 1003; 1 Starkie on Evidence, 190. The leading Mississippi case is Williams v. State, 73 Miss. 821. See, also, Garner v. State, 76 Miss. 521; Ware v. State, 110 So. 503; Davis v. State, 85 Miss. 416; Garman v. State, 66 Miss. 198; Jefferies v. State, 77 Miss. 760.

It was error for the court to permit the defendant in cross-examination to be asked as to details of offenses for which he had been formerly convicted, and the bringing before the jury the fact that he had formerly been convicted of assault and battery on Ed Rainey, the man he was charged with killing. 40 Cyc. 2610; Choice v. State, 54 Tex. Cr. 517, 114 S.W. 132; People v. Chinhane, 108 Cal. 597, 41 P. 697; Leo v. State, 63 Neb. 723, 89 N.W. 303; Dodds v. State, 45 So. 864.

W. C. Sweat and J. A. Lauderdale, Assistant Attorney-General, for the state.

It is true that the law is settled in Mississippi, as well as other jurisdictions, that you cannot contradict a witness on a matter wholly collateral to the issue involved; and that the test is whether or not the parties would be allowed to prove the matter in dispute as a part of his case. Applying this test, which is laid down by the courts, it is apparent that the matter inquired about was not collateral. The statement made by the witness was: "Walter Walker has gone to Deck Childs to get a gun to kill Ed Rainey with," or words to that effect. Let it be remembered that this witness, Alta Vancy, was at the car where the difficulty between the defendant and the deceased began; and, in her direct testimony, she went into great detail as to what occurred between the defendant and the deceased. It was a part of the state's case and certainly competent to be proven that Walter Walker, the defendant, went to Deck Childs' to get a gun for the purpose of killing the deceased; and, as above stated, the witness was present when he left to go to Deck Childs'. She was present when he was coming back from Deck Childs with the gun and left hurriedly and went to the home of Mark Waldron; and it is certainly competent to prove that, when she got there, she said the defendant had gone to get the gun to kill the deceased. In no sense of the word, could this be called a collateral matter, for the witness was present, and saw and heard all that took place between them, except that which took place at the actual time of the shooting. In the second place, this action of the court certainly could not be harmful to the appellant for he, in his own testimony admitted everything contained in the statement made by the witness. The next action of the court below, which is urged as being erroneous, was in permitting the defendant on cross-examination to be asked as to the details of offenses on which he had been formerly convicted of assault and battery on Ed Rainey. To this contention of appellant we say that no attempt whatever to go into the details of these convictions was made by the state. Helmet v. State, 67 Miss. 562; Jackson v. State, 75 Miss. 145; Brown v. State, 96 Miss. 534, 51 So. 273. The only Mississippi case cited by the appellant to sustain his contention is the case of Dodds v. State, 45 So. 863 (not officially reported). This case, as we see it, is not an authority at all for the position of appellant. The defendant in that case was asked if he had been convicted of crime, and was then asked if he had served a term in the penitentiary and if that conviction was for an assault and battery with intent to kill, and he answered in the affirmative. The defendant, being a negro, was further asked if this was not for cutting a white man's throat; and the court said that the asking of the last question was error, as race prejudice, and should not be tolerated in courts of justice. That was a very different case from the one at bar, where the defendant's attention was only called to sufficient facts in each instance to properly identify the crime. See Haynes-Walker Lumber Co. v. Hankins, 141 Miss. 55; Gipson v. A. F. Wineman & Son, 141 Miss. 573, 106 So. 826; Mutual Life Ins. Co. v. Vaughn, 125 Miss. 369, 88 So. 11; City of Hattiesburg v. Beverly, 123 Miss. 579, 86 So. 590; Railroad Co. v. Fontaine, 111 So. 153.

Argued orally by Fred B. Smith, for appellant, and W. C. Sweat, for the state.

OPINION

COOK, J.

The appellant, Walter Walker, was indicted and tried in the circuit court of Tippah county for the murder of Ed Rainey, and was convicted of manslaughter and sentenced to the state penitentiary for a period of eight years, and from this conviction and sentence he prosecutes this appeal.

The facts, as testified to by the several witnesses for the state and the defendant, most of which are uncontradicted, are substantially as follows:

The defendant and the deceased were young white men who lived in the same community, and they were together for quite a while on the day of the homicide, and appeared to be on good terms. Late in the afternoon they went to the home of a Mr. Yancy and from there the appellant, his wife, and Miss Alta Yancy started to church services in the appellant's Ford roadster. The appellant was driving, while his wife was seated next to him, and Miss Yancy was seated to her right and next to the right-hand door of the car. As they were about to start, James Yancy, a brother of Alta Yancy, asked permission to accompany them, and climbed onto and stood on the left fender of the car; thereupon the deceased announced that he was going with them, and then climbed onto the right fender of the car. The deceased had been drinking, and was very much under the influence of intoxicating liquor, and, as they proceeded along the road, he made very indecent remarks to the ladies in the car and improper demonstrations toward them, and otherwise engaged in boisterous and improper conduct. The appellant remonstrated with the deceased, but he continued this objectionable conduct until they had proceeded one hundred and fifty or two hundred yards beyond the home of one Deck Childs, and there his conduct became so objectionable that the appellant ordered him to get out of his car. The deceased told the appellant to stop the car and he would get off; and the car was then stopped at a point where there...