Wood v. State

Counsel

McKeigney Latham, of Eupora, and V.D. Rowe, of Winona, for appellant. We submit that the court committed fatal error in permitting the state's witness, S.D. Gilliland, to testify in substance that a month before defendant killed the deceased the defendant made the remark that "some boys was hunting without privilege licenses," and that defendant then said, "there stands a son of a bitch over there for one," and that defendant was pointing at Grady Pyron (the deceased) when he said it. This testimony was irrelevant, immaterial and incompetent as being too remote. Raines v. State, 81 Miss. 489 ; Roscoe, Criminal Evidence (6 Ed.), 85-95; 1 Greenl. Evidence, pt. 2, chap. 1; Herman v. State, 75 Miss. 340 , 345, 22 So. 873; Holt v. State, 78 Miss. 631 , 29 So. 527; Farris v. People, 129 Ill. 521 , 21 N.E. 821, 4 L.R.A. 582, 16 Am. St. Rep. 283. In the case at bar, the court permitted a disconnected profane remark or a cursing to be detailed to the jury, a thing that happened a month before the killing, and had no connection with the killing, and it was detailed by a witness strongly antagonistic to defendant, as his whole testimony shows, within the hearing of no person, other than this witness. The state could not have shown as a part of its case in chief that appellant's daughter, a witness for him, made the statement attributed to her by the witness, Luther Patridge. The state was permitted to impeach her on a matter which is so clearly collateral as to require no argument to demonstrate it. And this incompetent testimony could serve no purpose but to pour poison into the minds of the jurors against the appellant. The state was bound by her answer on this matter on her cross-examination and should not have been allowed to try to impeach her in rebuttal. Cooper v. State, 49 So. 178; Williams v. State, 73 Miss. 820 , 19 So. 826; Garner v. State, 76 Miss. 515 , 25 So. 363; Bell v. State, 38 So. 795; Dunk v. State, 36 So. 609; Davis v. State, 37 So. 1018; Ware v. State, 145 Miss. 247 , 110 So. 503 . W.D. Conn, Jr., Assistant Attorney-General, for the state. The statement of S.D. Gilliland certainly cannot be construed as a threat. It may be conceded that this testimony was irrelevant, but, certainly, it could not cause a reversal of this conviction. This court has consistently held that before it will reverse a conviction two things must be made to appear: First, that error, in fact, was committed; and, second, that that error was prejudicial to the rights of the accused. Comings v. State, 136 Miss. 442 , 142 So. 19 ; Goins v. State, 155 Miss. 662 , 124 So. 785 ; Lott v. State, 152 So. 785. A witness may always be impeached by statements made out of court which are inconsistent with and contradictory to his testimony in court so long as such impeaching testimony is addressed to material matters. Shaw v. State, 136 Miss. 1 , 100 So. 519; Cody v. State, 167 Miss. 150 , 148 So. 627 . Argued orally by V.D. Rowe, for appellant, and by W.D. Conn, Jr., for the state.