Opinion
No. 27633.
December 3, 1928.
1. WITNESSES. Test regarding whether matter is collateral, within rule forbidding impeachment of witness on immaterial issue, is whether cross-examining party could prove it in support of case.
Test as to whether matter is collateral, within meaning of rule forbidding impeachment of witness on an immaterial issue, is whether cross-examining party would be allowed to prove it as part or in support of his case.
2. ASSAULT AND BATTERY. That injured party flirted with accused's wife was no justification for accused's assault on him.
That injured party was guilty of flirting with accused's wife was no justification or excuse in law for accused's assault on him.
3. WITNESSES. Where state's witness testified in assault prosecution that he did not first with accused's wife, impeaches evidence contradicting such testimony held properly excluded.
Where state's witness testified in prosecution for assault and battery that he had not flirted with accused's wife, evidence contradicting such testimony, proffered to show that witness swore falsely, held properly excluded, since it was wholly immaterial whether witness' testimony in that respect was true or false.
APPEAL from circuit court of Washington county, HON. S.F. DAVIS, Judge.
Percy Bell, for appellant.
There is only one question, before this court and that is whether or not the court erred in excluding from the jury any evidence as to what transpired the night before the whipping of Mr. Brill at the picture theatre.
As the position of the defendant is that he should have been permitted to prove by disinterested and reputable witnesses that Mr. Brill had lied about what occurred at the picture show; this testimony we submit is competent, because it would have contradicted his own testimony in chief, would have destroyed his story and left that of Mr. Barnes, which was a reasonable story, buttressed in such way that it would have been uncontrovertible, but with the testimony excluded, the jury had nothing to decide between the two men as to which was telling the truth. See Huber v. Teuber, 3 MacArthur, 484, 36 Am. Rep. 110; Ivey v. State, 23 Ga. 576.
Rufus Creekmore, Assistant Attorney-General, for the state.
The argument is made that this impeaching testimony would show the witness to have testified falsely and, therefore, would go to his credibility as a witness. The state takes the position that this was an immaterial matter and being an immaterial matter, the defendant had no right to introduce the evidence to contradict the witness thereon. Certain it is that the evidence that the witness had made eyes at the defendant's wife could not have been introduced by the defendant in making out his defense in chief as a justification for the assault. The rule seems to be in this state that unless the cross-examining party would be entitled to prove the matter as a part of or in support of his case, then the impeaching testimony would be with reference to a collateral and immaterial issue, which could not be proven. Bell v. State, 38 So. 795; Garman v. State, 66 Miss. 196, 5 So. 385; Williams v. State, 73 Miss. 820, 19 So. 286; Davis v. State, 85 Miss. 416, 37 So. 1018; Ware v. State, 145 Miss. 247, 110 So. 503.
Appellant was indicted in the circuit court of Washington county of the crime of assault and battery with intent to kill and murder one Myer Brill. He was tried and convicted of the crime of assault and battery, and sentenced to pay a fine of one hundred dollars and thirty days in jail. From that judgment, appellant prosecutes this appeal.
Appellant testified that he had been informed that Myer Brill had been flirting with his (appellant's) wife. Appellant called Brill into his place of business, and informed the latter of what he had heard, and thereupon proceeded to assault and beat Brill with a pistol, inflicting on him several serious wounds.
Brill testified, on his examination in chief, without objection from appellant, and also on his cross-examination, that he was not guilty of flirting with appellant's wife. The appellant did not object to that testimony when it was brought out by the state in its examination in chief of Brill. Appellant offered witnesses to contradict that testimony of Brill's, which the court ruled out. To that action of the court the appellant excepted, and this is the only alleged error assigned and argued by appellant on this appeal.
The question is whether or not the impeaching testimony offered by appellant was with reference to collateral and immaterial issue. The test as to whether a matter is collateral, within the meaning of the rule forbidding the impeachment of a witness on an immaterial issue, is whether the cross-examining party would be allowed to prove it as a part, or in support, of his case. If not, it is irrelevant; for what is improper to be proven directly cannot be rightfully proven indirectly. Ware v. State, 145 Miss. 247, 110 So. 503; Magness v. State, 106 Miss. 195, 63 So. 352; Id., 103 Miss. 30, 60 So. 8; Davis v. State, 85 Miss. 416, 37 So. 1018; Williams v. State, 73 Miss. 820, 19 So. 826; Garman v. State, 66 Miss. 196, 5 So. 385; Bell v. State (Miss., not officially reported), 38 So. 795.
Under the law, the question as to whether Brill was guilty of flirting with appellant's wife was wholly immaterial — if true, it was no justification or excuse whatever in law for appellant's assault upon Brill. Appellant argues that, although it was immaterial whether Brill had flirted with appellant's wife or not, appellant should have been permitted to introduce the proffered testimony to show that Brill swore falsely when he testified that he had not flirted with appellant's wife. But the trouble with appellant's position is that it was wholly irrelevant and immaterial whether Brill's testimony in that respect was true or false. It had no bearing whatever on the issue to be tried by the jury, namely, whether or not appellant's assault upon Brill was unlawful. Appellant, as a witness in his own behalf, admitted that he committed the assault and battery upon Brill, and offered as his only excuse therefor that Brill had flirted with his wife; therefore, under the law, according to appellant's own admission on the witness stand, he was guilty of the crime of which the jury convicted him. In other words, under his own evidence he was guilty, whether Brill flirted with his wife or not.
Affirmed.