Davis v. State

39 So. 522, 87 Miss. 337

• Court: Mississippi Supreme Court
• Decided: November 15, 1905
• Status: Published

Opinion

Truly, J.,

delivered the opinion of the court.

Upon cross-examination of Mary Simmons, the sister-in-law of defendant, whose testimony was of vital importance to his defense, the district attorney, over repeated protests of defendant, was allowed to show that the witness was the mother of a bastard child only a few weeks old. This was manifestly improper. Such testimony was utterly irrelevant to the issue before the jury, which was the guilt or innocence of the appellant of the crime of murder. The witness was not on trial, and it was incompetent to attempt to impeach her veracity by general proof of her unchastity. Says this court in Mackmasters’ case, 81 Miss., 376 (33 South. Rep., 2): “The wife of defendant was an important witness for him, and we think it was error to permit the district attorney to develop to the jury, in cross-examining her, that she was the mother of two children not born in wedlock.. This had no relevancy to the issue, and was too heavy a load to put on the defendant before an average jury in so grave a trial.”' This utterance, if called to the attention of the learned trial judge, should have furnished the rule for his guidance.

Reversed and remanded.