Opinion
No. 34022.
April 8, 1940.
1. CRIMINAL LAW.
Where there is sufficient evidence to escape a peremptory charge, validity of verdict may not be assailed as being against weight of credible evidence in absence of motion for new trial.
2. WITNESSES.
Generally, a party may not attack credibility of a witness introduced by himself.
3. WITNESSES.
The fact that state witnesses did not agree with each other throughout their testimony did not constitute "impeachment" of testimony of any of such witnesses, and hence there was no violation of rule that party may not impeach his own witnesses.
4. WITNESSES.
"Impeachment" of a witness is accomplished only by cross-examination, by proving witness' previous contradictory statements or acts, by proving witness' conviction of criminal offense, by adducing general evidence tending to show that witness is unworthy of belief on oath, and, possibly, by physical demonstration or experiment properly conducted.
APPEAL from circuit court of Tate county; HON. JOHN M. KUYKENDALL, Judge.
J.F. Dean, of Senatobia, for appellant.
The state thoroughly discredited its own witnesses, upon whose testimony it had to rely for a conviction, and no court can place any credence in their testimony.
When the case was called on the first Tuesday of the court, the day after the indictment had been returned, the state's attorneys called the witnesses into conference. These witnesses were also subpoenaed as witnesses for defendant and were the only eye witnesses to the homicide. The next thing defendant knew these witnesses were in jail, when he attempted to interview them, sent there by the district attorney, arbitrarily, without a hearing, without any commitment by the court, even with the knowledge of the court, without any authority whatever, without bail, and they were kept in jail until November 1st, eight days. When the imprisonment did not bring the desired results, they were indicted for perjury and were arraigned upon that charge and returned to jail. Mind you, these witnesses had not testified, they were only telling the state's attorneys what their testimony would be.
It was necessary for the state to prove, not only that John L. Manning killed Buddy Young, but it had to go further and prove beyond a reasonable doubt that the killing was not in necessary self defense, that deceased was unarmed and did not provoke the difficulty. This the state could not prove by its other witnesses, as they were not present and did not know what happened at the time. They did not know who did the killing nor whether it was justifiable or not. The district attorney knew that without the testimony of John Henry Parsons that the deceased did not say anything offensive to defendant and was not armed when he was killed, he would have never gotten his case to the jury. It is easy to see that this was the vital link needed in the state's case, and it is a fair deduction, in fact the only deduction that can be made, that this link was forged by eight days' unlawful imprisonment and duress, by the bogus indictment, and threat of the penitentiary, if they did not "tell the truth" and say, whether true or not, that deceased was unarmed when he was killed. This witness made a clear case of manslaughter. Now, if this witness was ready to testify to this fact of October 24th, why was he put in jail? Why was he indicted for perjury? Why was he then released from jail, discharged under the indictment for perjury, but with the indictment hanging over him as a club, why was he then placed on the witness stand, and not eight days before, if his testimony had not been changed to suit the state? The answer is easy. The imprisonment, the indictment for perjury, the threat of the penitentiary had the desired effect, the testimony was changed and he was used as an absolutely necessary witness to secure any conviction at all or even get past a peremptory instruction for the defendant.
Hale v. State, 72 Miss. 140; Morrow v. State, 57 Miss. 836.
The testimony of the three white men is very unsatisfactory. They had only a flashlight, and later the sheriff had only a match to examine the yard, and they could easily have missed seeing the blood except the pool at the corpse. Their testimony is that they did not see it, not that it was not there. Do what the district attorney did and said, eliminate the testimony of the three eye witnesses to the difficulty, and you eliminate this case against the defendant.
It is so well established that this court will not permit a conviction to stand on unsatisfactory, incredible evidence, and it has reversed so many cases on that ground alone that it is unnecessary to even cite authorities to sustain this position.
The court erred in permitting the state to impeach its own witnesses, John Henry Parsons and Mary Carter.
A party cannot impeach a witness whom he has introduced in a civil or criminal case.
70 C.J. 793 and notes; Jarnigan v. Fleming, 43 Miss. 710; Maden v. State, 65 Miss. 176.
This court has frequently reversed cases where perhaps no one error would have caused the reversal, but the accumulation of many small errors defeated a fair and impartial trial.
Russell v. State, 189 So. 90; Corliss v. State (Okla.), 159 P. 1015; 16 C.J. 869 and notes.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Appellant says that certain state witnesses were locked up in jail and charged with perjury and that they were kept in jail under this charge until they were willing to testify like the district attorney wanted them to. We do not know what these witnesses were charged with, nor whether there were valid grounds for an indictment. It appears that there had been a preliminary hearing at which they had testified, and it is not clear whether they were placed in jail before or after their testimony which resulted in the indictment of the appellant for murder. That was purely a collateral matter in this case. However, if we should assume that they were placed in jail and charged with perjury and that there was duress applied to these witnesses in order to secure their testimony at the trial, such duress would not have the effect of rendering these witnesses incompetent as such. Such duress, if any, applied to them prior to their introduction as witnesses would not disqualify them because evidence thereof would only go to their credibility as witnesses in the eyes of the jury.
Alexander v. State, 145 Miss. 675, 110 So. 367; Randolph v. State, 152 Miss. 48, 118 So. 354; Goss v. State, 144 Miss. 420, 110 So. 208; Stallings v. State (Miss.), 107 So. 890.
Appellant argues that it was improper for the state to contradict its own witnesses. By the witnesses, John Parsons and Mary Carter, it appears that they testified about certain blood stains extending from the porch out to the bank next to the road. By other witnesses it was shown that they examined the ground shortly after the killing and that they saw no blood, except that around the body of deceased. It is not infrequent that witnesses for the state contradict each other about facts which they have observed. No two witnesses can see and report alike on the same facts which have come under their observation. It is a part of the duty of the jury to see these conflicting statements in the light of the evidence in the case and determine which, if any, of the witnesses have reported correctly.
Hartley v. State, 161 Miss. 667, 137 So. 518; Wells v. State, 112 Miss. 76, 72 So. 859.
The first assignment of error is that the verdict is contrary to the evidence. When, as here, there is sufficient evidence to escape a peremptory charge, the validity of the verdict may not be assailed, as being against the weight of the credible evidence in the absence of a motion for a new trial; and no such motion was made in this case. The reasons for this rule were fully set forth in Justice v. State, 170 Miss. 96, 154 So. 265.
The second assignment is that the court erred in permitting certain evidence in rebuttal. No reversible error on this account appears here, under the particular attitude of this record. Roney v. State, 167 Miss. 827, 150 So. 774; Clark v. State, 181 Miss. 455, 180 So. 602; Hunter v. State, 183 Miss. 779, 184 So. 835.
The third assignment is that the State was allowed to introduce evidence for the direct purpose of impeaching its own witnesses. Some of the State's witnesses testified, as a part of their testimony, that the signs of blood extended from the porch to a point 20 to 25 feet distant therefrom, while other witnesses introduced by the State testified that there were no blood signs except at the porch steps where deceased fell. It is upon this contradiction of each other among the State's witnesses that appellant urges that the State was allowed to impeach its own witnesses.
The general rule is that a party may not attack the credibility of a witness introduced by himself. There are exceptions to the rule, however, as, for instance, in Rutland v. State, 170 Miss. 650, 155 So. 681, 156 So. 520. But the fact that witnesses introduced by a party do not agree with each other throughout is not an impeachment. Witnesses on the same side seldom concur as to all the details, and that they do not do so is more often than otherwise in favor of the honesty of their independent versions; for if all agreed in everything, the hearers would likely conclude that the story had been collaborated.
Impeachment of a witness is accomplished in four modes, and in four only: (1) By cross-examination; (2) by proving his previous contradictory statements or acts; (3) by proof of his conviction of a criminal offense; and (4) by adducing general evidence tending to show that he is unworthy of belief on his oath. And some authorities add a fifth: By physical demonstration or experiment properly conducted. 70 C.J., pp. 800, 801; 1 Thompson on Trials, Sec. 489.
Affirmed.