Opinion
No. 36826.
June 14, 1948.
1. CRIMINAL LAW.
Where witness testified she heard a shot and screams of victim, that she jumped out of bed and that as soon as she and her son could also get out of bed she ran to the scene about 100 yards distant and that when she reached it, the wounded man stated to her that defendant was the person who shot him, and accused was not present, admitting statement on ground that it was a part of the res gestae was error.
2. CRIMINAL LAW.
Permitting the State to bolster the testimony of its witness that he had stated to others out of court what he states in court as the facts is reversible error when that statement is upon the sole or dominant issue.
3. CRIMINAL LAW.
In prosecution for shooting and wounding, erroneous admission of testimony of a witness that shortly after shooting, prosecuting witness stated to her that defendant did the shooting was not harmless on ground that prosecuting witness had testified that his declaration that defendant did shooting was in fact true where it could not be said from the record that no other verdict than guilty verdict rendered could have been reached by an honest jury.
4. CRIMINAL LAW.
In prosecution of defendant who allegedly shot prosecuting witness, plaster of paris casts made by sheriff of tracks found near scene of shooting and casts made by sheriff of impressions made by sheriff with defendant's shoes at time when defendant was in jail and while defendant was not wearing the shoes, were properly admitted over defendant's objection that the admission violated defendant's rights against self-incrimination (Const. 1890, sec. 26).
5. CRIMINAL LAW.
Defendant could not complain on appeal of sheriff's opinion testimony given on cross-examination, where defendant himself provoked the testimony.
6. CRIMINAL LAW.
Defendant could not complain on appeal of sheriff's testimony on cross-examination that in sheriff's testimony on cross-examination that in sheriff's opinion tracks found at scene of crime and tracks made by sheriff using defendant's shoes were the same, where defendant made no objection to testimony at time it was given, and later only in the general form that testimony was in violation of constitutional provision that an accused shall not be compelled to give evidence against himself (Const. 1890, sec. 26).
APPEAL from the Circuit Court of Jefferson Davis County.
Martin Farr, of Prentiss, for appellant.
The statement of a person shot, made a minute or two after the shooting, in the absence of the accused, that accused shot him for nothing, is merely a rehearsal or history of the shooting, a past transaction, and is not admissible as part of the res gestae, being in no sense a verbal act explaining any part of the difficulty nor constituting a part of it.
Mayes v. State, 64 Miss. 329, 1 So. 733; Lloyd v. State, 70 Miss. 251, 11 So. 689; Moore v. State, 86 Miss. 160, 38 So. 504; Kraner v. State, 61 Miss. 158.
It was error to permit the State to bolster the testimony of its witness by showing that he stated to others, out of court, by whom he had been shot on the occasion in question.
Phillips v. State, 177 Miss. 370, 374, 171 So. 24; Washington v. State, 93 Miss. 270, 46 So. 539; Ashford v. State, 81 Miss. 414, 33 So. 174; Brown v. State, 108 Miss. 478, 66 So. 975; Jeffcoat v. State, 108 Miss. 585, 67 So. 56; Williams v. State, 79 Miss. 555, 558, 31 So. 197; Boyd v. State, 84 Miss. 414, 424, 36 So. 525.
On a criminal trial a witness may testify to the pecularities of the foot of the accused and how the pecularities were reproduced in a certain foot track, but he cannot give his opinion that such track was made by the accused.
Herring v. State, 122 Miss. 647, 84 So. 699; State v. Green, 40 S.C. 328, 18 S.E. 933, 42 Am. St. Rep. 872.
See also Cumberland v. State, 110 Miss. 521, 70 So. 695; Pearson v. State, 97 Miss. 841, 53 So. 689; Magee v. State, 92 Miss. 865, 46 So. 529; Newcomb v. State, 37 Miss. 383; Cofer v. State, 152 Miss. 761, 118 So. 613; Johns v. State, 130 Miss. 803, 95 So. 84; Stokes v. State, 5 Baxt. (Tenn.) 619, 30 Am. Rep. 72; 64 A.L.R. 1085 et seq.
It is reversible error for the court to refuse a request for a separate instruction upon the presumption of innocence though it does instruct fully and correctly upon the necessity for proof of the defendant's guilt beyond a reasonable doubt.
Gentry v. State, 108 Miss. 505, 66 So. 982; Wilkie v. Collins, 48 Miss. 496; Owens v. State, 80 Miss. 499, 32 So. 152; Cook v. State, 85 Miss. 738, 38 So. 110; Blalock v. State, 79 Miss. 517, 31 So. 105. Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The doctrine as to what is of the res gestae depends on the facts involved in the case and the test is whether it was a continuing transaction. If the transaction is passed and ended it is not admissible as a res gestae. It is doubtful in my mind whether the statement by Jim Gholar at the time he made it to Ora Speight was a part of the res gestae. I submit however that whether it was or not, it was not reversible error because Jim Gholar testified positively that the appellant did shoot him and that after the shooting appellant went across the field where the tracks were afterwards found and casts made.
It was competent to take a plaster of paris cast of the tracks found leading from the scene of the shooting to the appellant's house and to take casts from the shoes of the appellant and compare them and introduce the casts in evidence so that the jury could compare them.
There was no error in the sheriff's examining the shoes taken from the appellant after his arrest for the purpose of making the plaster casts. Whenever there is a lawful arrest the person may be searched for such things as would tend to make out the offense against him.
Toliver v. State, 133 Miss. 789, 98 So. 342; Wallace v. State, 149 Miss. 639, 115 So. 778.
The instruction complained of was properly refused. The appellant obtained adequate and proper instructions.
There is no dispute that the prosecuting witness was shot with a pistol and dangerously wounded, and there is no issue that it it was without any sort of justification. The sole defense was an alibi and thus the sole issue in the case is as to the identity of the criminal. In his direct testimony on that issue the prosecuting witness named appellant as the person who shot him, claiming to be able to identify the person in the moonlight after midnight. To bolster or support that identification another witness was introduced who testified that she heard the shot, and the screams of the victim, that she jumped out of bed, called to her son to go with her, and that as soon as her son could also get out of bed she ran to the scene, about a hundred yards distant, as best we can make out of the record, and that when she reached the scene, the wounded man stated to her that the appellant was the person who had shot him.
Appellant's objection to this testimony was overruled on the ground that the statement was a part of the res gestae. That this was error is ruled by Haney v. State, 129 Miss. 486, 487, 92 So. 627, a case which, we think, is precisely in point.
The State does not contend that there was no error in the admission of this testimony, but insists that it was harmless for the reason that the prosecuting witness who made the declaration has taken the stand and has testified that his declaration was in fact true. We have had frequent occasion to rule that it is error to permit the state to bolster the testimony of its witness that he had stated to others out of court what he states in court as the facts; and when that statement is upon the sole or dominant issue in the case, we have held the error reversible. Typical of such a case is Phillips v. State, 177 Miss. 307, 171 So. 24. If we were to hold that a transgression of the rule is harmless if and when the bolstered witness takes the stand and there reaffirms the statement, the rule would amount only to an academic declaration and had as well not be declared at all. It is only when we can say, from the record, that no other verdict could have been reached by an honest jury, that we could pronounce the error harmless, and we do not think this is such a case.
We find no other error in the record, and it is for the above stated error alone that we reverse. But one of the assigned error merits some further notice, since the same matter will likely arise in a new trial, and that point is this:
On the following morning the sheriff went to the scene of the crime and he found tracks made by a person moving in apparent haste from the scene across the adjoining field. He made plaster-of-Paris casts of some of these tracks. He returned to the jail where the accused had been incarcerated a few hours after the shooting, and compared the casts with the shoes of appellant. The shoes were not being worn by the appellant at the time, but were somewhere in the jail. The result of this comparison was such that the sheriff made some tracks, using the shoes in doing so, and made casts of the tracks thus made by the shoes. These casts, both of the tracks in the field and those made by the shoes, were introduced in evidence before the jury. Objection was made on the ground that it violated appellant's rights against self-incrimination. This objection was not well taken. See Cody v. State, 167 Miss. 150, 165, 148 So. 627 and Patton v. State, 201 Miss. 410, 29 So.2d 96, 100.
The further objection is now made that the sheriff was allowed to give an opinion as to the comparison of the shoes with the tracks in the field. When this was offered by the State, the court excluded it, expressly ruling that the prints could be exhibited before the jury but that the sheriff could not express any opinion as to comparisons. Later, when appellant's attorney took the sheriff on cross-examination, and in response to questions propounded on the cross-examination, the sheriff expressed opinions as to the comparisons. Of this appellant cannot complain for two reasons: first, he himself provoked it; and, second, he made no objection to it at the time, and later only in the general form that the evidence was in violation of Section 26 of the Constitution, the section which ordains that an accused shall not be compelled to give evidence against himself.
Reversed and remanded.