Swanner v. State

Counsel

Nate S. Williamson, J.A. Riddell, and E.T. Strange, of Meridian, for appellant. The true rule of evidence of former convictions is expressed in: Dodds v. State, 45 So. 863; Powers v. State, 156 Miss. 316 , 126 So. 12 ; Tuberville v. State, 179 So. 340; Mars v. Hendon, 178 Miss. 157 , 173 So. 286. The falsus in uno, falsus in omnibus instruction is in direct violation of Section 586, Code of 1930, which provided that "the judge shall not charge the jury as to the weight of evidence." Jones v. State, 11 S. M. 315; Barcus v. State, 49 Miss. 17 ; Gentry v. State, 92 Miss. 141 , 45 So. 721; Metropolitan Life Ins. Co. v. Wright, 190 Miss. 53 , 199 So. 289 . A.M. Byrd, Assistant Attorney-General, for appellee. We recognize that the law of this state is that ordinarily the only inquiry about former convictions that may be made upon cross-examination of a witness is the fact of the conviction and what crime was involved. However, where a number of prior convictions have occurred, this court has recognized the right of the cross examiner to indulge in sufficient latitude regarding details to show all of the convictions. Secs. 1531, 1532, Code of 1930; Brown v. State, 96 Miss. 534 , 51 So. 273; Bufkin v. Grisham, 157 Miss. 746 , 128 So. 563 ; Walker v. State, 151 Miss. 862 , 119 So. 796 ; Jackson v. State, 75 Miss. 145 , 21 So. 707. In the case of Metropolitan Life Insurance Co. v. Larkin, 199 So. 293, which was a companion case to Metropolitan Life Insurance Co. v. Wright, supra, this court reversed the judgment of the lower court because of an identical error to the other error committed in the last mentioned case, only the falsus in uno, falsus in omnibus instruction not having been given. Hence, it is logical to conclude that the falsus in uno, falsus in omnibus instruction given in the case of Metropolitan Life Insurance Company v. Wright, supra, though held to be error, was not considered as reversible error. We call the attention of this court further to the fact that this instruction was given by the trial court during the trial of the case at bar prior to the decision in the case of Metropolitan Life Insurance Company v. Wright, supra, and at the time when the bench and bar of this state considered the decision of this court in the case of Turner v. State, 95 Miss. 879 , 50 So. 629, to be the controlling law in the premises, where this court held it was reversible error for the trial court to refuse an instruction similar to the one here being considered. And we submit further that the giving of this instruction could not have been prejudicial to the appellant, because both the appellant and the state offered numerous witnesses, and the pronouncement of this instruction was applicable to each and every one of them alike. And, furthermore, in view of the manifest guilt of the appellant, as reflected by the evidence in this case, it is not logical to view it that the appellant was harmed by the giving of this instruction. Argued orally by J.A. Riddell, for appellant, and by A.M. Byrd, for appellee.