Summary
In Mitchell v. State, 171 Miss. 4, 156 So. 654 (1934), Mitchell and Steve Bethel, Jr., were indicted for murder. Bethel and Mitchell were questioned together by the sheriff and a deputy.
Summary of this case from Harrison v. StateOpinion
No. 31391.
October 8, 1934.
1. CRIMINAL LAW.
Confession of one of two men charged with murder held inadmissible as hearsay on separate trial of other accused, who denied it so far as implicating him.
2. CRIMINAL LAW.
Confession of one of two men accused of murder held inadmissible on separate trial of other accused, where maker was present but not called as witness by state.
3. CRIMINAL LAW.
State is not released from common-law duty to call eyewitnesses of alleged crime to witness stand, unless res gestae has been established by eyewitness.
4. CRIMINAL LAW.
It was district attorney's duty on separate trial of one of two men accused of murder to put other accused on witness stand, if his testimony would have tended to prove guilt of one tried, and, if not, to nol. pros. case, in absence of eyewitness' testimony establishing res gestae.
APPEAL from Circuit Court of Wilkinson County.
O.W. Catchings and W.F. Tucker, both of Woodville, for appellant.
The Federal Constitution, Article 6 of Amendments, and section 26 of the state constitution, guarantees that the accused shall have the right to be confronted by the witnesses against him.
Judge Ethridge's "Mississippi Constitution;" Mattox v. United States, 156 Sup. Ct. Rep. 237.
For statements and admissions of a co-defendant to be admitted in evidence against a defendant, it must be affirmatively shown by the state that: the statements were made in the presence and hearing of defendant; the statements must have been understood by the defendant; the statements must have been pertinent; and the defendant must have given assent to such statements by speech, act or silence.
Nowhere in the sheriff's testimony is one of the above rules met, except that the confession was made or repeated in the presence of the defendant. The very gist of the above rules is the fact that the defendant must give such statements assent by speech, act or silence. The sheriff fails affirmatively or negatively to show the demeanor of the defendant during the confession of the co-defendant.
The statement of a co-defendant made in the presence of the defendant and denied by the defendant is not admissible in evidence.
Brown v. State, 78 Miss. 637; Johnson v. State, 90 Miss. 317, 43 So. 435; Garner v. State, 120 Miss. 744, 83 So. 83; Stribling v. State, 124 Miss. 141, 86 So. 897; 1 R.C.L., sec. 15, pp. 478-481.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Confessions of a co-indictee, when made in the presence of the defendant, was admissible in evidence as against him. It is only when defendant denies the statements of the co-indictee that the confession becomes inadmissible, and upon objection, the court ought to rule it out.
The specific objection made in the court below was that such testimony was inadmissible because the confessor was present in court and wanted to testify. No objection was ever interposed, nor was there any motion made to exclude the confession on such ground.
Peters v. State, 158 Miss. 530, 130 So. 695; Marley v. State, 109 Miss. 717, 69 So. 210; Conwill v. State, 147 Miss. 118, 112 So. 868; Duckworth v. Town of Taylorsville, 142 Miss. 440, 107 So. 666; Boutwell v. State, 165 Miss. 16, 143 So. 479; Pickett v. State, 164 Miss. 142, 143 So. 692.
Argued orally by W.F. Tucker, for appellant, and by W.D. Conn, Jr., for the state.
Appellant was indicted and convicted in the circuit court of Wilkinson county of the murder of John Credit, and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.
The body of the crime was amply proven by competent witnesses. The question was whether appellant and his codefendant, Steve Bethel, Jr., were the criminal agents who committed the homicide. Appellant was granted a severance and tried separately. The state introduced no eyewitness to prove appellant's criminal agency. For that purpose it introduced Wood, the sheriff of the county, and a Mr. Sessions; they testified that, while appellant and Bethel were in jail charged with the murder, Bethel, in their presence and in the presence of appellant and others, made a confession which, if true, showed beyond reasonable doubt the guilt of appellant. The sheriff and Mr. Sessions testified, however, that appellant then and there denied Bethel's confession so far as it implicated him. This testimony was admitted over appellant's objection. Appellant objected to it on the ground that it was hearsay "and Steve (Bethel) is present in the courthouse in twenty feet of the witness, able, willing and anxious to testify." The court overruled the objection, stating that the confession was admitted because it was shown to have been made within the presence of the appellant. The court was in error in admitting the confession. It was purely hearsay evidence. When denied by the appellant, it amounted to nothing more than that. Brown v. State, 78 Miss. 637, 29 So. 519, 84 Am. St. Rep. 641; Johnson v. State, 90 Miss. 317, 43 So. 435; Garner v. State, 120 Miss. 744, 83 So. 83; Stribling v. State, 124 Miss. 141, 86 So. 897; 1 R.C.L., sec. 15, pp. 478-481.
The Attorney-General concedes that the evidence should have been excluded if properly objected to, but contends that, appellant's objection having been made upon the specific ground that it was the duty of the state to put Bethel on the witness stand, he was shut off from taking advantage of what the state contends was the only ground of objection; namely, that the testimony was hearsay. The evidence was inadmissible on both grounds. It was the duty of the court to rule out the evidence on the specific objection made by the appellant. It was the common-law rule that it was the duty of the state to call at least some, if not all, of the eyewitnesses to the alleged crime. This rule has been modified to some extent but not wholly abrogated. The state is not released from this duty unless the res gestae has been established by an eyewitness or eyewitnesses. It was the duty of the district attorney to ascertain from Bethel what his testimony, would be, and, if it tended to prove appellant's guilt, then put him upon the witness stand. On the other hand, if he ascertained that Bethel's testimony did not tend to show appellant's guilt, it was his duty to nol. pros. the case, because there was no evidence left tending to sustain it. Patty v. State, 126 Miss. 94, 88 So. 498; Hale v. State, 72 Miss. 140, 16 So. 387; Morrow v. State, 57 Miss. 836; Judicial Discretion of Trial Courts (Bowers), sec. 406, p. 410.
Reversed and remanded.