Cooper v. State

94 So. 161, 130 Miss. 288

• Court: Mississippi Supreme Court
• Decided: September 15, 1922
• Docket: No. 22771
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

Emmit Cooper was indicted, tried, and convicted of selling intoxicating liquor, and prosecutes this appeal.

Two errors are relied on for a reversal: First, that the indictment was not signed by the district attorney or the foreman of the grand jury; and, second, that the evidence is insufficient to support the verdict. The copy of the indictment in the record is neither signed by the district attorney or by the foreman of the grand jury, nor is it marked filed by the clerk as required by law. Since the submission of the case a motion has been filed by the state for a certiorari. This motion should have been filed before the submission of the case, and ordinarily no motion will be entertained after submission of a canse, and especially without a showing of some adequate reason why it was not filed before the submission. But inasmuch as we have concluded that the evidence is insufficient to sustain the conviction, we will dispose of the case upon that assignment.

The witness for the state on the trial testified one way-on examination by the district attorney and directly the opposite when examined by the defendant. This performance was gone through with several times with like results. It also appeared from his testimony that when he went before the grand jury the first time he swore that he did not buy liquor from the appellant, and afterwards he was urged to return before the grand jury, and testified that he did, as he might be indicted for perjury if he did not testify to buying the liquor. This advice or Urging was done by the uncle of the witness and not by any officer. But from his own testimony it appears that he testified to the grand jury two different ways on two different occasions as he has done on trial on the merits here. The appellant testified that he did not sell the liquor. The testimony of the state witness to the sale was attempted to be fortified by the testimony of an ex-sheriff as to a general conversation had with the appellant, in which conversation he urged the appellant to quit selling liquor, and the appellant stated to him that he was in debt and that that was the only way he had of paying his debt.

The statute authorizes the giving in evidence of as many sales as the state can prove or desires to prove antedating the date of the indictment, but it does not authorize and permit general statement of the character here introduced for the purpose of convicting an appellant. There was no conversation as to a particular sale to any one.

The evidence of the state witness as to the sale is directly contradictory. It is not a case of explaining former testimony or correcting a mistake in former evidence, but it is willful and deliberate statements contradictory to each other made in the course of the testimony, and it is utterly impossible to give legal credence to such evidence; and especially such credence as would prove the guilt or remove all reasonable doubt of his guilt. The witness should have been committed for .contempt of court, because there was no theory upon which the variance between his evidence can be reconciled with a decent regard for the truth.

The judgment will be reversed and appellant discharged.

Reversed, and appellant discharged.