Smith v. State

Mississippi Supreme Court
Smith v. State, 90 Miss. 111 (Miss. 1907)
43 So. 465
Cali, Ioon

Smith v. State

Opinion of the Court

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 *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.

Reference

Full Case Name
Allie Smith v. State of Mississippi
Cited By
12 cases
Status
Published
Syllabus
Criminal Law and Procedure. Affidavit. Absent witness. Effect of admission. Instructions. Testimony of accused. Credibility. Witness. Gross-examination. Evidence. Comment on failure of accused to testify. Upon the second trial of an accused charged with homicide, the defendant being the only witness to the killing in his behalf,- it was error: — (а) To permit the state to show that the defendant’s absent witness was present but not introduced by,him at the former trial, the state having agreed that the witness if present would testify as shown in an affidavit read to the jury; and (б) To allow the state to ask defendant when testifying in his own behalf, whether he had testified in his previous trial; and, without reference to whether the trial be a first or other one, (c) To instruct the jury at the instance of the state that they should, in weighing the evidence, take into consideration defendant’s interest in the result of the trial; and (d) To allow the state to show on cross-examination of a witness that he claimed a reward for arresting the accused.