Williams v. State

• Citation: 19 So. 826,73 Miss. 820
• Court: Mississippi Supreme Court
• Decision Date: 11 May 1896
• Parties: NAPOLEON WILLIAMS v. THE STATE

19 So. 826

73 Miss. 820

NAPOLEON WILLIAMS v. THE STATE

Supreme Court of Mississippi

May 11, 1896

March 1896

FROM the circuit court of Adams county HON. W. P. CASSEDY, Judge.

The appellant was indicted for the murder of one Zion Ross, and convicted of manslaughter. The second instruction given for the state was as follows: "The court instructs the jury that a reasonable doubt, in a legal sense, is a doubt which has some reason for its basis, as defined in these instructions. It does not mean a doubt from a mere caprice or groundless conjecture. A reasonable doubt is such a doubt that the jury are able to give a reason for; such a doubt as would cause a reasonable, prudent and considerate man, in the graver and more important affairs of life, to pause and hesitate before acting upon the truth of the matter charged or alleged. Therefore, the court instructs you that, in considering this case, you should not go beyond the evidence to hunt for doubts, nor should you entertain such doubts as are merely chimerical, or based upon groundless conjecture. A doubt, to justify an acquittal, must be reasonable, must arise directly out of and from a candid consideration of all the evidence in the case, and then it must be such a doubt as would cause a reasonable, prudent and considerate man to hesitate and pause before acting in the graver or more important affairs of life. You are therefore instructed further, if, after a careful and impartial consideration of all the evidence in this case, you can say and feel that you have an abiding conviction of the guilt of the defendant, and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt, and your verdict should be guilty." Defendant excepted to the granting of that charge. The opinion states the case with reference to the other question discussed therein.

Judgment reversed and cause remanded.

Calhoon & Green, for the appellant.

1. The state should not have been allowed to contradict, by another witness, the testimony of Margaret Kelly, elicited by the state on cross-examination, denying that she made, after the killing, the unsworn statement as to which she was interrogated. It was not permissible on the idea of contradicting the witness by her own statements. What she said after the killing was wholly immaterial and irrelevant.

2. The second instruction erroneously presents the doctrine of reasonable doubt. To say that the jurors must have that degree of certainty upon which they would act in their own grave and important affairs, is one thing, and to tell them as here, that they must convict unless they have such doubt as would cause a reasonable man to pause and hesitate before acting in the graver and more important affairs of life, is a very different thing, that finds no sanction in the law. Whose graver and more important affairs, their own or those of other people? And must their certainty be such as only to make them pause and hesitate instead of inducing their action?

3. The action of the court below in allowing the statement of the district attorney as to the penalty of manslaughter, made in his concluding argument, to go unrebuked, although objected to, was highly prejudicial to the accused, when regarded in connection with the evidence and the further statement that the jury might return a verdict of manslaughter under the indictment.

Wiley N. Nash, attorney-general, for the state.

1. It does not follow that, because the district attorney stated in his concluding argument the penalty affixed to the crime of manslaughter, it had not been already brought to the attention of the jury in the earlier stages of the case. The record is silent as to this, and both sides may have repeatedly alluded to the different degrees of punishment. Nothing could be less unusual in the history of murder trials. Although no charge on the subject was given, the legal nature of the crime was subject to discussion in all of its phases.

2. The second instruction for the state presents the doctrine of reasonable doubt with a fullness bordering on prolixity. Certainly the defendant was not prejudiced by the view of the law therein stated. Taken in its entirety, it states the rule with the accompaniment of every recognized qualification favorable to the defendant.

Argued orally by S. S. Calhoon, for the appellant.

OPINION

WHITFIELD, J.

The second instruction for the state is erroneous in attempting to define reasonable doubt. We do not think it open to objection on the ground urged, but the concluding part of the charge expressly defines reasonable doubt by telling the jury that "abiding conviction of the guilt" of the defendant, or full satisfaction of his guilt, is the equivalent of belief beyond a reasonable doubt. This is another of the many vain attempts to "compute that which is not number, and measure that which is not space." Burt v. State , 72 Miss. 408, 16 So. 342.

Margaret Kelly, a witness for the defendant, testified, detailing all the circumstances of the killing, all of which she plainly saw, as she says. On cross-examination she was asked this question: "On the morning that Zion was killed, at the dead body, in the presence of Elsie Ross, John Jeems and Lutie Higdon, did you not say to Elsie Ross, 'I sent you word not to let your husband come down here. They made up a plot to kill him three weeks ago?'" She answered that she did not so state. The state, in rebuttal of this, proved, by John Jeems, that she did make that statement to Elsie Ross. The defendant objected to both the question to Margaret Kelly and the question to John Jeems, and, the objections being overruled, duly excepted.

It is competent to discredit a witness by showing that he has "made statements out of court contrary to what he has testified on the trial. But it is only in such matters as are relevant to the issue that the witness can be contradicted." 1 Green. Ev. (15th ed.), vol. 1, § 462. It is true that, on cross-examination, great latitude is allowed, and that a witness may be asked by the cross-examining party as to collateral matters, as to which he could not be examined in chief, but the cross-examining party in such case is bound by the answers, and cannot contradict them. It is also true that, as stated by Mr. Wharton, cited in Seller v. Jenkins , 97 Ind. 430, "it is not necessary, in order to introduce such contradictory evidence, that it should contradict statements made by the witness in his examination in chief. "Ordinarily, " says Mr. Wharton, "the process is to ask the witness, on cross-examination, whether, on a former occasion, he did not make a statement conflicting with that made by him on his examination in chief. But the conflict may take place as to matters originating in the cross-examination, and then, if such matters are material, contradiction by this process is equally permissible." But confusion must be avoided here, and the precise rule is this: Whilst the unsworn statement out of court may be used to contradict the sworn statement in court, whether the statement sought to be contradicted is made by the witness on his direct examination or on his cross-examination, in either case the statement in court must be one embodying a fact substantive in its nature and relevant to the issue made in the case. And if such embodied fact be one not in its nature substantive and so relevant to such issue, and therefore one which the cross-examining party could prove as a part could prove as a part of this case, then the unsworn statement out of court cannot be used to contradict the statement in court, though the cross-examining party may ask as to such unsworn statement, being bound by the answer. It is further true, as held in Seeler v. Jenkins, supra , that "the degree of contradiction does not determine the competency of the impeaching testimony, however much that consideration may affect its potency." 1 Thompson on Trials, § 494.

The question recurs, then, what matter are collateral within this rule? The supreme court of Pennsylvania, in Hildeburn v. Curran , 65 Pa. 59, through Sharswood, J., said: "The test of whether a fact inquired of in cross-examination is collateral, is this, would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea?" In that case the plaintiff sued to recover for services as a salesman. "One of the questions involved was the period of time the plaintiff had been in the service of the defendants. He had been absent abroad and returned. The witness had been asked in cross-examination, whether he had not said to Mr. Duburg that he had received a letter stating that Mr. Curran, the plaintiff, was not coming back, " and answered that he had not, and defendants then offered Mr. Duburg to contradict this statement. Held , it could not be done.

In Drake v. State , 29 Tex. Ct. App 265, 269, 15 S.W. 725 et seq. , a trial for murder, James Drake, Jr., a witness for the defendant, was asked, on cross-examination, the following question: "On the evening or night of August 27, 1887, the day Guinn was shot by your father, at or near the store of Charles Post, on Austin street, in the city of Waco, Texas, and in the presence of Hugo Robinson, Street Bacon, Bob Fleming and Todd Zigler, did you left your father's house that morning?" The witness denied making the statement. Over the objection of defendant, the state was permitted to prove, by the four witnesses named, that he did make it, and, although the court "plainly and...