Fugate v. State

85 Miss. 86

• Court: Mississippi Supreme Court
• Decided: November 15, 1904
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

There was no error in refusing to allow defendant to examine the juror Emmett Livingston on his voir dire as to his conception of a reasonable doubt. Jurors on their voir dire examination are not to be led into the tangled mazes of this metaphysical field.

Nor was there any error in refusing to allow the juror Roan to answer the question, on his voir dire examination, “whether he would believe witness Roscoe Hoard on oath.” .The court permitted the testimony of Roscoe Hoard to go to the jury over the objection of the defendant, but the next day, upon the request of the state, excluded the testimony. Counsel for state took this action so as not to have possible error in the record. Their reason seems to have been that, whilst Roscoe Hoard corroboratecl in part tlie witness Jim Moreland as to the conversation had with defendant (which the reporter will set out in full), he did not corroborate him throughout; and, further, because they feared that it was barely possible that Hoard’s testimony might fail of showing that Nan Cunningham, the deceased, was the specific person referred to' by defendant. The record shows beyond dispute that Nan Cunningham was the specific person referred to, and it was not necessary to the competency of Hoard’s testimony otherwise that he should throughout corroborate Moreland. The latter fact might have affected the credibility of the one or the other with the jury, but did not render the testimony incompetent. The only mistake made by the court below was in acceding to the request of the counsel for the state and excluding the testimony; but this was an error in favor of the defendant. It is obvious that, so far from prejudicing his case, the action of both the counsel for the state and the exceptionally able and accomplished trial judge was the result of extreme tenderness towards the defendant, and praiseworthy conscientiousness in seeking to secure to him every legal right.

The addition of the words “and the jury is in doubt which is the correct theory” to the twenty-sixth instruction asked by the defendant was not error. There being doubt as to the correct theory is submitted as the correct test by counsel for appellant in their twenty-fifth instruction, in which the jury are told that, if there “was any fact in the case susceptible of two reasonable interpretations, one favorable and the other unfavorable to the defendant, and the jury were in doubt which was the correct interpretation,” etc.

It was erroneous in the court to change the first part of the twenty-eighth instruction asked for the defendant by striking-out the word “evidence” and substituting therefor the word “presumption.” But it was harmless error, for the latter clause of the instruction cures it. The jury could not have misunderstood the idea of the instruction as propounded originally.

None of the other errors assigned on the trial of the merits is tenable. We have carefully considered the case in all its phases, and find no error of any kind except the one just alluded to in respect to the twenty-eighth charge, and this was cured as stated.

Affirmed.