Summary
In Bryant v. State, 172 Miss. 210, 157 So. 346 (1934), it was pointed out that testimony on the issue of identity where it was so connected in circumstances and in point of time to show the mental attitude or state of mind of the defendant was admissible in evidence.
Summary of this case from Ladner v. StateOpinion
No. 31334.
November 5, 1934.
1. ROBBERY.
Positive identification of defendant as participant in robbery held sufficient to take issue of identity to jury.
2. CRIMINAL LAW.
Whether verdict was against great weight of evidence would not be considered where motion for new trial did not assign such as one of its grounds.
3. CRIMINAL LAW.
Motion to exclude all evidence of witness concerning statements made by appealing defendant and codefendant tried for same offense held properly overruled, where evidence was admissible so far as codefendant was concerned, and inadmissibility so far as appealing defendant was concerned was not so obvious as to be beyond possibility of debate.
4. CRIMINAL LAW.
In prosecution against two defendants in which evidence is introduced which is not admissible as to one of defendants, it is duty of that defendant to separately object and to request a specific ruling that as to him evidence should be excluded, although admissible as to other defendant.
5. CRIMINAL LAW.
On issue of identity, evidence of admissions or confessions of like crimes committed jointly by same defendants, against same class of persons about same time, showing same general design or system, is inadmissible.
6. CRIMINAL LAW.
Where names of seven persons who were present when robbery was committed appeared on indictment and were summoned by state as witnesses and were present at trial, defendant did not exercise due diligence when he failed to interview or introduce as witness one of seven persons not called by state, who would have testified that defendant did not look like robber, so that refusal of motion for new trial on ground of such newly discovered evidence was proper.
7. EVIDENCE.
Newly discovered evidence is available as ground for new trial or for rehearing, where due diligence has been exercised in procuring such evidence.
8. EVIDENCE.
Accused has duty of interviewing all persons known to have been present when crime was committed, including state's witnesses when names of such appear on back of indictment, and accused cannot excuse his failure to interview state's or supposedly adverse witnesses on ground of hostile or stubborn attitude of such witnesses, as regards, accused's exercise of due diligence in procuring newly discovered evidence.
APPEAL from the circuit court of Pike county.
HON.E.J. SIMMONS, Judge.
Creel Bryant was convicted of robbery, and he appeals. Affirmed.
Broom Shipman, of Jackson, for appellant.
After the case was closed and appellant was sentenced to serve two years in the penitentiary, he filed a motion for a new trial. It developed that the state had summoned a witness Luke Harvey, but did not use him. He was a clerk or assistant manager of the store and was present when the robbery was committed. He was in a position where he could see and know the man who stood at the door. He is an intelligent white man. The appellant nor his attorneys knew what his testimony would be until after the trial. They assumed, and had a right to assume, that it would be as the other witnesses with the one exception of the negro Walter Magee, to the effect that he could not identify the appellant, and if that was true then it would have been proper for the state to excuse him, because his testimony would have shed no light on the case; but appellant and his attorneys after the trial and sentence for the first time discovered that this witness would not only testify that he could not identify this appellant as the man who stood near the door, but that he would go a step further and positively testify that the man who stood near the door was not the appellant but some one else.
The motion for a new trial was in due form and sworn to by the appellant and on the hearing it was shown that neither the appellant nor his attorneys knew of the existence of this evidence and we have already shown the circumstances that deceived them with reference to this witness.
Overton v. State, 101 Miss. 607, 58 So. 219.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It will be conceded that the testimony for the state in this case does not make out a strong case against appellant, but it appears that it was sufficient to require the jury to pass on it and it is certainly sufficient to prevent the trial judge from granting the motion to exclude any peremptory instruction.
Coleman v. State, 155 Miss. 482, 124 So. 652; Cody v. State, 167 Miss. 150, 148 So. 627.
When the confession was offered, the defendant asked that the jury be retired and the competency of it inquired into. This inquiry was completed and the record does not show that at any time the court was asked to pass on its admissibility, and, likewise, the record shows no objection to the confession, or any part of it, as and when it was offered to the jury.
Howard v. Town of Newton, 108 Miss. 548, 67 So. 49; Boatwright v. State, 143 Miss. 676, 109 So. 710; Jackson v. State, 163 Miss. 235, 140 So. 683; Peters v. State, 106 Miss. 333, 63 So. 666; Carter v. State, 6 How. 9; Wright v. State, 82 Miss. 421, 34 So. 4; Wampold v. State, 155 So. 350; Lee v. State, 137 Miss. 329, 102 So. 296; Brown v. State, 72 Miss. 95, 16 So. 202; Whittington v. State, 160 Miss. 705.
The testimony on motion for a new trial shows that the witness was present at the time of the trial, although it shows that he was not used as a witness by the state. With the witness for the state identifying this witness as having been present at the time of the robbery, it seems that diligence would have required the defendant to ascertain what the witness would testify.
Argued orally by Stewart Broom, for appellant, and by W.D. Conn, Jr., for the state.
Appellant and another, named Mize, were jointly indicted, tried, and convicted of the robbery of a Jitney Jungle Store in McComb. The debatable issue was one of identity. The testimony was overwhelming in the establishment of the guilt of Mize, but was not strong upon the issue of the identity of this appellant. Nevertheless one witness, who was standing very near one of the alleged criminals during the robbery, positively identified appellant. This was sufficient to take the issue to the jury as against the peremptory charge requested and denied; and we cannot consider whether the verdict is against the great weight of the evidence, because the motion for a new trial did not assign this as one of its grounds. Justice v. State (Miss.), 154 So. 265.
The defendants lived at Crystal Springs, and it appears that about the same time as the robbery here in issue there had been a series of robberies of Jitney Jungle Stores in Jackson. Crawford, a police officer of the city of Jackson, was introduced as a witness who testified that these two defendants having been arrested as the perpetrators of the Jackson robberies, were interviewed in jail, and that Mize, the other defendant, freely and voluntarily confessed that he had committed the robberies in Jackson and also this robbery in McComb; and that appellant freely and voluntarily confessed that he drove the car for about all the robberies committed by Mize, that Mize was the gunman, and he (the appellant) drove the car for him. The police officer admitted, however, that, so far as appellant was concerned, the statements by appellant were in reference to the Jackson robberies, and that the McComb robbery was not mentioned. At the close of the testimony of the police officer, a motion to exclude his testimony was made in the following words: "Now come the defendants and move the court to exclude all the evidence offered by the witness Crawford for the reason it is not shown that the time and occasion spoken of was the time and occasion and the place for which these defendants are now being tried; it is too general, indefinite and vague." The court overruled the motion, and properly so, of course, so far as Mize was concerned, for Mize had confessed to Crawford not only to the Jackson robberies but also to the McComb robbery for which the defendants were being then tried; and the motion to exclude was not specifically that a part of the testimony of Crawford be excluded, but generally as to all of it. The rule is that "in objections to testimony, part of which is admissible and part inadmissible, specific objections must be made to the inadmissible part, separating it from the admissible, and, unless so done, the objection will be overruled in toto, if any part of the testimony be admissible or be competent for any purpose." Whittington v. State, 160 Miss. 705, 710, 135 So. 190, 192. And upon the same principle, "where two defendants are being tried together a general objection made on behalf of both defendants jointly, to testimony which is competent and admissible against one, is insufficient." 16 C.J., p. 877. It is the duty of the particular defendant against whom the evidence is not admissible to separately object and to request a specific ruling that as to him the evidence be excluded, although admissible as to the other defendant.
In our investigation of the legal authorities dealing with the matter discussed in the foregoing paragraph, we have examined the case, Sparf v. U.S., 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343, which holds that, where defendants are being jointly tried and a joint objection to a confession is made by all the defendants, the court may nevertheless overrule the objection as to one defendant and sustain it as to the others; but the court puts this holding upon the principle that, where the inadmissibility of the evidence as to the other defendants is so obvious or so manifest as to be beyond possibility of debate, the court may make an exception in the interest of justice. We have considered whether we might make the same exception here, but are precluded by the fact that the essential ground for the exception is absent in this case, that is, that here the inadmissibility of the evidence as to the other defendant is not so obvious, not so manifest as to be beyond the possibility of debate; for, when the issue is one of identity, the rule is that evidence is admissible, and this, of course, includes admissions or confessions of like crimes committed jointly by the same defendants, against the same class of persons, about the same time, showing the same general design or system. 1 Wharton, Crim. Ev. (10 Ed.), p. 147. See, also, Collier v. State, 106 Miss. 613, 616, 64 So. 373. The statement of the facts shows that this evidence might be admissible against this appellant under that rule, and, while we are not holding that it was admissible under that rule, the precise point is that its inadmissibility, if it be inadmissible, is not so obvious, not so manifest, as to be beyond the possibility of debate.
It appeared in the evidence for the state that, other than the two charged with the robbery, there were seven persons present in the store when the crime was committed, one of whom was Luke Harvey; and the names of these seven persons appear on the back of the indictment. All seven were summoned as witnesses by the state at the trial, and were present. Six were introduced by the state. Five of them were unable to identify appellant, but the sixth, who was near him at the door, did positively identify him. The seventh witness, Luke Harvey, was not introduced by the state. Appellant and his attorneys assumed that the reason that the state did not introduce Harvey was because his testimony would, as to this appellant, be simply that he could not identify appellant, which assumption, while not unreasonable, was nevertheless only an assumption. Therefore appellant did not interview Harvey or introduce him as a witness. But, after the trial and the verdict of conviction, appellant learned for the first time that Harvey's testimony would be not only that he could not identify appellant, but that the robber who remained near the door was not quite so tall as appellant and had certain blemishes in his face not possessed by appellant. Appellant, when he learned of this, amended his motion for a new trial, and included therein, as one of the grounds, the discovery of this evidence, and insisted, as he insists here, that the evidence was newly discovered.
The materiality and importance of this evidence is to be at once conceded, and, if we could say that the trial court abused its discretion in not sustaining the motion and not allowing a new trial on that account, we would be happy to so say. But, in order to reach a hard case, we are not authorized to open the door to the establishment of an unsound and inadmissible rule of practice, one which could and would become intolerable in the orderly and reasonably economical administration of justice. Due diligence as measured by legal standards is a universal prerequisite to the availability of newly discovered evidence as a ground for a new trial or for a rehearing.
It is the duty of a party charged by indictment with a crime to diligently prepare his defense; and, except as to a small class of particular persons not here concerned, and as to whom there is no present occasion to attempt specification, it is his duty to interview all persons known to have been present and who for that reason may be called as witnesses. This is a duty which the party owes to the court, even if not to himself, in order that he may be ready for trial, and especially so far as interviews with the witnesses are concerned. And it is a mistake to suppose, as it sometimes seems to be, that a defendant charged with a crime has no right to interview the state's witness, when the names of those witnesses appear on the back of the indictment. This does not fence off the witnesses from the defendant, nor shall the officers representing the state be permitted to take any such course, whatever it may be, as shall prevent or impede the defendant in conferring with any of the witnesses, including those for the state. This very question was directly dealt with by us in Lee v. State, 160 Miss. 618, 632, 633, 134 So. 185. But in this case, even if the want of diligence in failing to interview these witnesses before trial could be excused, there remains the failure to interview the witness Harvey, as soon as the state closed, and it was seen that the state did not propose to use him, although the evidence for the state shows that he was present.
Nor is it admissible as an excuse for not interviewing the state's witnesses, or any other supposedly adverse witnesses, with the exceptions above reserved, that some of such witnesses sometimes take a hostile or stubborn attitude, and either refuse to talk or else do so in such manner as to be embarrassing or on occasion insulting. For, when a witness is so stubborn that he will not talk, or so much of a partisan that he will not do so politely, this can be shown on the cross-examination of that witness, and it thereupon becomes a most effective weapon for the depreciation of the weight of the testimony of such a witness when it is submitted to the jury that he was so biased that he would not talk, or, if so, only in an impolite way, or else that his refusal to talk was because of a consciousness that his story, if told in advance, was so insecure in point of truth as not to stand the scrutiny of any previous examination.
We have mentioned all the assignments argued by appellant, and, although this record is not entirely satisfactory as to the guilt of appellant of this particular offense, there is nothing in it within the legitimate power of review by this court, and the judgment must be affirmed.
Affirmed.