Smith v. State

Mississippi Supreme Court

Smith v. State

43 So. 465, 90 Miss. 111

CourtMississippi Supreme Court

DecidedMarch 15, 1907

StatusPublished

Cited by12 cases

This text of 43 So. 465 (Smith v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. State, 43 So. 465, 90 Miss. 111 (Mich. 1907).

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Opinion

Cali-ioon, J.,

delivered the opinion of the court.

On the application for continuance the state agreed that the defense might read what the affidavit for it set forth would be sworn to by the absent witness, to have the same effect as if he had been present and had -so testified. Notwithstanding this, the state was permitted in rebuttal, in a very close case as this is, to show by the stenographer that on the previous trial that witness had not been introduced by the defense. We think this error. It could have'had no sort of bearing on the credibility of the absent witness, but was a direct assault on defendant’s affidavit for the continuance; and this was not a trial for perjury in making that affidavit (Scott v. State, 80 Miss., 197, 31 South., 710), and was an overload on the accused.

We think it was -error to give the state’s second instruction. The defendant was the only witness to the fact in his own behalf, and the charge would have been no stronger if it had called his name and cautioned the jury, in its own language, to , “take into consideration the interest such witness may have in the result of the trial.” His testimony should not be so hampered by such express reference. See annotations to § 1918, Code 1906.

It was improper to allow the state to show, on the cross-examination of the.witness Aired, that he claimed a reward for [116]*116arresting accused. It had no bearing on what he had testified to, and could only tend to hamper the defense.

The question to defendant, as a witness, whether he had ever testified, was improper, and equivalent to a comment to the jury on his nonappearanee as a witness on the previous trial of the case. By all our adjudications this is sacred ground. Yarbrough v. State, 70 Miss., 594, 12 South., 551; Sanders v. State, 73 Miss., 444, 18 South., 541; Reddick v. State, 72 Miss., 1008, 16 South., 490. Bulings must be examined by the light of the evidence as a whole.

Reversed and remanded.

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Cali-ioon, J.,

delivered the opinion of the court.

On the application for continuance the state agreed that the defense might read what the affidavit for it set forth would be sworn to by the absent witness, to have the same effect as if he had been present and had -so testified. Notwithstanding this, the state was permitted in rebuttal, in a very close case as this is, to show by the stenographer that on the previous trial that witness had not been introduced by the defense. We think this error. It could have'had no sort of bearing on the credibility of the absent witness, but was a direct assault on defendant’s affidavit for the continuance; and this was not a trial for perjury in making that affidavit (Scott v. State, 80 Miss., 197, 31 South., 710), and was an overload on the accused.

We think it was -error to give the state’s second instruction. The defendant was the only witness to the fact in his own behalf, and the charge would have been no stronger if it had called his name and cautioned the jury, in its own language, to , “take into consideration the interest such witness may have in the result of the trial.” His testimony should not be so hampered by such express reference. See annotations to § 1918, Code 1906.

It was improper to allow the state to show, on the cross-examination of the.witness Aired, that he claimed a reward for [116]*116arresting accused. It had no bearing on what he had testified to, and could only tend to hamper the defense.

The question to defendant, as a witness, whether he had ever testified, was improper, and equivalent to a comment to the jury on his nonappearanee as a witness on the previous trial of the case. By all our adjudications this is sacred ground. Yarbrough v. State, 70 Miss., 594, 12 South., 551; Sanders v. State, 73 Miss., 444, 18 South., 541; Reddick v. State, 72 Miss., 1008, 16 South., 490. Bulings must be examined by the light of the evidence as a whole.

Reversed and remanded.

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Bluebook (online)

43 So. 465, 90 Miss. 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-miss-1907.

Opinion

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