Hart v. State

115 So. 887, 149 Miss. 817, 1928 Miss. LEXIS 79

• Court: Mississippi Supreme Court
• Decided: March 12, 1928
• Docket: No. 26877.
• Status: Published

Opinion

Cook, J.

Appellant, David Hart, was convicted in the circuit court of Simpson county on a charge of incest, and sentenced to the penitentiary for a period of ten years, and from this sentence prosecutes this appeal.

The testimony offered on behalf of the state, if believed, establishes the guilt of the.appellant. Appellant vigorously asserts his innocence of the charge, and it was peculiarly the province of the jury to pass upon this contested issue of fact.

There are three assignments of error; the first being based upon the exclusion of the testimony of two wit nesses. One of these witnesses proposed to testify that she heard the wife of appellant say their daughters would never marry unless they got rid of the appellant, • and that these girls could get lots of car rides if appellant would let them go. The other witness proposed to testify that the wife of appellant stated to her that she wanted the witness’ husband to come off of the appellant’s bond for the reason that no one else would go on it and that he would then have to go to jail. This testimony was properly excluded. The appellant’s wife was not a witness in the case whose testimony might be impeached or discredited, and there was, at that stage of the trial, no theory upon which this testimony was admissible.

Appellant also assigns as error the refusal of the instruction reading as follows:

“The court charges the jury for the defendant that he had the moral and legal right to control his home and to correct his minor children in a reasonable way, and to the extent of inflicting corporal punishment upon them in order to bring them under such control. The court further instructs the jury that, if you believe from the evidence in this case that the said Anna May Hart has testified falsely against the defendant, or if there is a. reasonable doubt as to whether or not she has on the account of the said corporal punishment or for any other cause, then in this event it is your sworn duty to find the defendant not guilty.”

The refusal of this instruction presents no reversible error. In addition to the fact that this instruction is faulty for the reason that it singles out and points the finger of suspicion at the complaining witness by name, the appellant procured an instruction informing the jury that, if they believed any witness or witnesses in the case had willfully, knowingly, or corruptly testified falsely to any material fact, then they might discard the entire testimony of such witness or witnesses.

The third and last assignment of error is based upon the refusal of the court below to set aside the verdict and grant a new trial on the ground of newly-discovered evidence. This motion for a new trial was- supported by affidavits and the testimony of two witnesses to the effect that they heard Anna May Iiart, the complaining witness, say, after the preliminary trial in the justice of the peace court, that her father was not guilty of the charge, and that her mother was the cause of her testifying against him. This newly-discovered testimony merely tended to impeach the credibility of the state’s witness, and it is the settled rule in this state that a new trial will not be granted on the ground of newly-discovered evidence, the only effect of which is to impeach the credibility of a witness. Cooper v. State, 53 Miss. 393; Moore v. Railroad Co., 59 Miss. 243; Demarco v. State, 59 Miss. 355; Bailey v. State, 94 Miss. 864, 48 So. 227, 20 L. R. A. (N. S.) 409; Tuberville v. State (Miss.), 38 So. 333; Campbell v. State, 123 Miss. 713, 86 So. 513.

The judgment of the court below will bé affirmed.

Affirmed.