Wells v. State

• Decision Date: 08 February 1910
• Citation: 96 Miss. 500,51 So. 209
• Court: Mississippi Supreme Court
• Parties: JOHN WELLS v. STATE OF MISSISSIPPI

51 So. 209

96 Miss. 500

JOHN WELLS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 8, 1910

March 1910

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Wells appellant, was indicted, and tried for and convicted of the murder of one Margaret Welburn, sentenced to suffer death and appealed to the supreme court. The opinion of the court sufficiently states the facts of the case pertinent to the decision made in the cause.

Affirmed.

R. L. C. Barrett and Theodore McKnight, Jr., for appellant.

The glaring error of the lower court, in allowing the district attorney to ask appellant if he testified in the committing trial over defendant's objection, and to ask him if he made a statement in the committing trial, all over the objection of defendant requires a reversal and that the appellant be given a new trial. Bunckley v. State, 77 Miss. 540, 27 So. 638; Smith v. State, 90 Miss. 111, 43 So. 465; Boyd v. State, 84 Miss. 414, 36 So. 525.

George Butler, assistant attorney-general, for appellee.

The appellant is so clearly guilty that it must be manifestly prejudicial error, indeed, to work a reversal. The only semblance of error to be found in the record is the improper inquiry by the district attorney of the accused, when on the witness stand, whether he testified on his preliminary trial.

The cases of Bunckley v. State, 77 Miss. 540, 27 So. 638; Smith v. State, 90 Miss. 111, 43 So. 465, and Boyd v. State, 84 Miss. 414, 36 So. 525, are cited by appellant.

The Bunckley case extended the statute to the extreme limit, but it will be noted that there the state was permitted to prove affirmatively, by several witnesses, that Bunckley had not, on his trial in the justice court, accounted for the possession of the recently stolen property, and in the Boyd case the state was permitted to show affirmatively that Boyd did not testify before the justice of the peace; he did not go on the stand voluntarily; and even under these circumstances the court was divided on the proposition. In the Smith case, the Boyd case, and the Bunckley case were not referred to as authority; and it will appear on examination of the record that the holding was based on the special and peculiar facts of that case. But, however the ruling, certainly the questions and answers under review did not appear, at the time they were asked and answered, to be erroneous. If he had testified in the committing trial, the questions and answers were perfectly competent, and whether he had or not could not be known in advance; and as soon as it did appear no further questions were asked on the point.

Argued orally by George Butler, assistant attorney-general, for appellee.

OPINION

SMITH, J.

Appellant, having been convicted in the court below of murder and sentenced to death, appeals to this court.

Appellant testified as a witness in his own behalf, and on cross-examination was asked the following questions: "Q. You were before Judge Wagoner in the committal trial of this case? A. Yes, sir. Q. Did you testify in that trial? A. No sir. Q. Make any statement? (Objected to. Objection overruled, and the defendant then and there excepted to the ruling of the court.) Q. Did you testify before Judge Wagoner? A. No, sir." The action of the court in permitting these questions to be propounded to appellant is assigned as error. ...