Witt v. State

• Decision Date: 09 February 1931
• Docket Number: 29258
• Court: Mississippi Supreme Court
• Parties: WITT v. STATE

132 So. 338

159 Miss. 478

WITT v. STATE

No. 29258

Supreme Court of Mississippi

February 9, 1931

Division B

Suggestion Of Error Overruled February 23, 1931.

APPEAL from circuit court of Pontotoc county, HON. C. P. LONG Judge.

Hiram Witt was convicted of possessing liquor, and he appeals. Affirmed.

Affirmed.

J. W. P. Boggan, of Tupelo, for appellant.

There is no rule of law requiring the state to have any given number of witnesses to establish it case, but the law does require it to make out a case beyond all reasonable doubt and it certainly was not done in this case, as the only witness for the state whose testimony was competent contradicted himself and was contradicted on material points by all of the witnesses for the defendant and as already stated two of defendant's witnesses swore they would not believe him on oath after qualifying as character witnesses.

The court over the objection of appellant's counsel allowed O. D. Patterson, sheriff of Pontotoc county to be introduced as a witness for the state in rebuttal and to detail a conversation he had with Mrs. Ruth Witt, who was at that time Mrs. Ruth Pritchard, at a time when the defendant was not present or in hearing of them.

That this species of testimony supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay is totally inadmissible.

Mima Queen v. Hepburn, 3 L.Ed. 348; Davis v. Wood, 1 Wheat (U. S.) 6, 4 L.Ed. 22; Donnelly v. United States, 228 U.S. 276, 33 S.Ct. 465, 47 L.Ed. 834, Ann. Cas. 1913E, 710, Thomas v. United States, 157 F. 897, 84 C. C. A. 477, 17 L. R. A. (N. S.) 720; State v. Beeson, 155 Iowa 360, 136 N.W. 319, Ann. Cas. 1912C, 424; State v. D'Adams, 84 N.J.L. 386, 86 A. 414. Ann. Cas. 1914B, 1109; Stapylton v. Clough, 2 E. & B. 933, 118 Eng. Reprint, 1016, Note 191; Wells v. Shipp, W. 353; Overstreet case, 3 H. 328; Heard v. State, 59 Miss. 545; Union & Planters Bank & Trust Co. v. Ryles, 94 So. 796, 130 Miss. 892.

Eugene B. Ethridge, Assistant Attorney-General, for the state.

It is the state's contention that the testimony of a witness may be discredited or impeached by showing that he had made prior statements which are inconsistent with or which contradict his testimony at the trial.

The presence of the party, whose witness it is sought to impeach, when the contradictory statements were made, is not necessary to make the statements admissible, since the purpose of showing them is not to bind the party but to impeach the witness.

28 R. C. L., sec. 219, page 663.

It seems to be a well accepted principle of law in this state that sworn statements in court may be contradicted by unsworn statements out of court where the statement in court is one that goes to a substantive fact which is relevant to the issue of the case.

Williams v. State, 73 Miss. 820.

Unquestionably, the statement in this issue is of a substantive nature and is directly relevant and bearing to the issue of this case. It goes right to crux of the charge.

Lee v. State, 137 Miss. 329; Magness v. State, 106 Miss. 195.

The jury was fairly instructed as to the theory of the presumption of innocence and the burden of proof necessary to conviction and as a consequence of all of this the jury found the defendant guilty.

Brown v. State, 103 Miss. 639; Simmons v. State, 109 Miss. 605; Felder v. State, 108 Miss. 580; Jackson v. State, 105 Miss. 782.

Argued orally by J. W. P. Boggan, for appellant, and by Eugene B. Ethridge, for the state.

OPINION

Ethridge, P. J.

The appellant was convicted of having liquor in his possession, was fined two hundred fifty dollars, and sentenced to thirty days in jail, from which conviction he appeals here.

There are two assignments of error, one that the evidence is insufficient to sustain the conviction, and the other that the court erred in permitting a witness for the defendant. Mrs. Ruth Witt. to be contradicted or impeached by statements made out of court contrary to her testimony, which statements were immaterial to the issue, and were hearsay.

The state's witness Jeff Pritchard testified directly and positively that the appellant was in the possession of liquor in his presence and in the presence of others. There is nothing in his evidence contradictory within itself. He told a straightforward story, consistent in all of its parts when considered by his testimony alone.

The only other evidence as to the possession of the liquor was the testimony of the sheriff that he found liquor on the premises of another person named Jim Witt of like kind and quantity of that testified to by Pritchard, who testified that the appellant had possession of liquor and delivered it to, or left it on, Jim Witt's place.

Pritchard was contradicted by Mrs. Ruth Witt, who was formerly his wife, and by others, and, in addition, two witnesses testified that they would not believe Pritchard on oath; that his reputation for truth and veracity was bad in the community in which he lived.

The jury are the triers of facts, and are the sole judges of the weight and worth of evidence, and of the veracity and credibility of witnesses, and unless we can see clearly from the record reasonable evidence that the jury were influenced by improper motives or surroundings, we will not substitute our judgment for theirs in passing upon such questions. The jury come from the county and generally have some knowledge of the standing and credibility of the people in the county, and whether they are worthy of belief or not. When the testimony of a witness is consistent within itself, and is sufficient to sustain a conviction, if standing alone, the mere contradiction by other witnesses as to facts, or the mere opinion of witnesses as to credibility and veracity, do not deprive the jury of the right to decide who told the truth in the...