Opinion
No. 39145.
April 19, 1954.
1. Criminal law — immunity — plea denied — voluntary testimony of defendant — civil tax suit.
The fact that defendant voluntarily testified as a witness in his own behalf in civil suit against him by the State Tax Collector for penalties for the unlawful sale of intoxicating liquor did not render the defendant immune to prosecution for unlawful sale of the same intoxicating liquor. Sec. 2630, Code 1942.
2. Criminal law — evidence — admissions against interest.
Voluntary admissions of a defendant himself, made either in or out of court, were not hearsay, but admissions against interest and were admissible against the defendant.
3. Intoxicating liquors — admissions of defendant in civil suit — testimony of court reporter competent — not hearsay.
In prosecution for unlawful sale of intoxicating liquor, testimony of court reporter, who had taken down testimony in civil suit against defendant by State Tax Commission for collection of penalties for the unlawful sale of the same intoxicating liquor, to the effect that defendant had himself testified that he had sold the whiskey in question, was properly admitted over objection that it was hearsay. Sec. 2630, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Forrest County; F. BURKITT COLLINS, Judge.
W. Arlington Jones, Hattiesburg, for appellant.
I. The court erred in overruling the motion to quash the affidavit. Hosey v. State, 136 Miss. 5, 100 So. 577; Lucas v. State, 130 Miss. 8, 93 So. 437; Malouf v. Gully, 187 Miss. 331, 192 So. 2; State v. Bates, 187 Miss. 172, 192 So. 832, 835-6; State v. Bramlett (Miss.), 47 So. 433; State v. White, 140 Miss. 245, 105 So. 500; Sudduth v. State, 136 Miss. 742, 101 So. 711; Thornton v. State, 143 Miss. 262, 108 So. 709; Triplett v. State, 136 Miss. 320, 101 So. 501; Turnage v. State, 134 Miss. 431, 99 So. 9; Sec. 26, Constitution 1890; Sec. 2630, Code 1942.
II. The Court erred in requiring the appellant to give evidence against himself, over his objections, and erred in admitting into evidence, over appellant's objections, the testimony of Mrs. Ann Nielson, and any evidence of the testimony of appellant given in a civil suit, involving the same intoxicating liquors. Church v. State, 179 Miss. 440, 176 So. 162; Dukes v. State, 80 Miss. 353, 31 So. 744, 745; Owens v. State, 63 Miss. 450, 452, 453; Spivey v. State, 212 Miss. 648, 55 So.2d 404, 406; Steele v. State, 76 Miss. 387, 24 So. 910; Sec. 26, Constitution 1890; Sec. 1691, Code 1942; 20 Am. Jur., Secs. 686, 689, 698 pp. 578, 582, 587.
III. The Court erred in overruling appellant's motion to peremptorily discharge him at the conclusion of the State's evidence in chief.
IV. The Court erred in refusing to grant the peremptory instruction to find appellant not guilty at the conclusion of all the evidence, and after the State and appellant had rested.
V. The Court erred in overruling the motion for a new trial.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. The motion to quash the affidavit was correctly overruled by the trial court. Ivey v. State, 153 Miss. 41, 120 So. 449; State v. Bates, 187 Miss. 172, 192 So. 832; Turnage v. State, 134 Miss. 431, 99 So. 9; Sec. 26, Constitution 1890; Sec. 2630, Code 1942.
II. The Court did not err in admitting into evidence the testimony of Mrs. Ann Nielson with reference to the testimony of appellant, voluntarily given, in a civil suit. Crane v. State, 157 Miss. 548, 128 So. 579; Meyers v. United States, 171 F.2d 800; Smith v. State, 160 Miss. 227, 133 So. 681; Steele v. State, 76 Miss. 387, 24 So. 910; Sec. 26, Constitution 1890; 20 Am. Jur., Evidence, Sec. 559.
III. The Court correctly overruled appellant's motion to peremptorily discharge him at the conclusion of the State's evidence in chief.
IV. The Court correctly refused to grant appellant's peremptory instruction at the conclusion of the evidence.
APPELLANT IN REPLY.
I. The failure of the Court to quash the affidavit permits the State to accomplish indirectly what it cannot do directly, and it, therefore, violates the spirit and intent of the Immunity Statute (Section 2630, Code of 1942) and Section 26 of the State Constitution. Sec. 26, Constitution 1890; 58 Am. Jur., Witnesses, Sec. 45 pp. 49-50.
II. It was improper to admit into evidence the testimony of Mrs. Ann Nielson as to what appellant had testified about in a prior civil suit since the parties and issues in the civil suit were different from the parties and issues in this criminal case. Broach v. Wortheimer-Swartz Shoe Co. (Miss.), 21 So. 300; Harrington v. Harrington, 3 Miss. (2 How.), 701; Merrill v. Bell, 14 Miss. 730, 6 Sm. M. 730, 736; 58 Am. Jur., Witnesses, Sec. 45 p. 50.
Appellant was convicted in the county court on a charge of the unlawful sale of intoxicating liquor, which conviction was affirmed on appeal to the circuit court, and is now brought here for review. Appellant's guilt is shown conclusively by the evidence but he raises two questions with which we will deal.
(Hn 1) 1. Prior to the trial of this case the State Tax Collector had instituted a civil suit against appellant for the collection of penalties for the unlawful sale of intoxicating liquor. On the trial of that suit appellant voluntarily testified as a witness in his own behalf, and admitted the sale by him to a deputy collector of a bottle of whiskey. The conviction now before us for review involves the sale of identically the same bottle of whiskey which was introduced and identified in both trials. Appellant contended in the county court and contends here that upon his testifying in the civil suit brought against him by the State Tax Collector he was granted immunity from the prosecution of this criminal case under Section 2630, Code of 1942. We do not agree with that position. It was not the purpose of the statute to grant immunity to a person who has voluntarily testified, even though it may be as a witness for himself, in another proceeding. In the case of Turnage v. State, 134 Miss. 431, 99 So. 9, where the defendant had previously testified at the instance of a codefendant, we held that it was not the purpose of the statute to furnish immunity to witnesses testifying on behalf of other defendants charged with violation of the prohibition laws, but that its purpose was to give the State the right to pardon or grant immunity to witnesses in consideration of their testimony on behalf of the State. We adhere to that decision. It finds support in the later case of Smith v. State, 160 Miss. 227, 232, 133 So. 681, where, after reviewing numerous authorities, the court said: "It will be seen from a reading of these authorities that, if the testimony is given under compulsion of an oath, it is not to be admitted as against the defendant charged with crime, but, if he voluntarily testifies, his testimony is admissible against him in a subsequent trial for the offense."
2. Appellant further contends that the trial court erred in admitting the testimony of the court reporter who had taken down the evidence at the trial of the suit against him by the State Tax Collector and who testified that upon that trial appellant had himself testified that he sold the whiskey in question. Appellant says that this evidence is hearsay and that position would be correct if the court reporter had been permitted to testify what some other witness had said on the former trial. (Hn 2) However, it has never been the rule that voluntary admissions of a defendant himself made either in or out of court are hearsay. They are admissions against interest. In Smith v. State, supra, the Court quoted with approval from Steele v. State, 76 Miss. 387, 24 So. 910, as follows: "When a defendant now offers himself voluntarily as a witness in his own behalf, in any form of judicial investigation, when charged with a crime, he, thus assuming of his own accord the character of a witness, must accept all the incidents and responsibilities attaching to the character of a witness. And in such case, if his sworn statement has been reduced to writing by a coroner or magistrate, it may be offered against him in the trial in the circuit court." (Hn 3) We think the testimony of the court reporter was clearly admissible and that the judgment of the lower court should be affirmed.
Affirmed.
Roberds, P.J., and Lee, Holmes and Ethridge, JJ.. concur.