Bailey v. State

| Miss. | Mar 15, 1909

Fletcher, J.,

delivered the opinion of the court.

We cannot reverse this case on account of the court’s action in refusing to set aside the verdict on the ground of newly discovered evidence. Such evidence tended only to impeach the evidence of the witness McLendon, by no means the only, or indeed the strongest, witness for the state. The rule is well established 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. Moore v. Chicago, etc., R. R. Co., 59 Miss. 243" court="Miss." date_filed="1881-10-15" href="https://app.midpage.ai/document/moore-v-chicago-st-louis--new-orleans-railroad-7985657?utm_source=webapp" opinion_id="7985657">59 Miss. 243.

The only other question seriously pressed is that the court erred in refusing to admit evidence to show that the defendant had an opportunity to escape from prison, and not only declined to do so, but actually warned the sheriff of the escape of a fellow prisoner. This testimony was offered after the state had proven the flight of the prisoner immediately following the homicide. It should be stated that the defendant was permitted to explain this flight fully, and that the evidence excluded related to a matter which transpired some time after the defendant had surrendered, and was entirely distinct and independent of the first occurrence. It is argued, and the argument is sustained by the great authority of Prof. Wigmore, that, since the state is permitted to prove flight as showing a “consciousness of guilt,” the defendant should be permitted to prove a refusal to escape when opportunity offers as showing a “consciousness of innocence.” 1 Wigmore on Evidence, 293. The learned text-writer, however, concedes that this view is opposed to the great weight of authority, and with that candor which is one of the chief qualities of his great intellect appends in the note-a list of eases which utterly repudiate and reject his conclusion.

In this instance the majority of the court prefers the reasoning and conclusions of these cases, rather than the conclusion reached by the author. This is not wholly because of the number and distinction of the courts so holding, but because we think the rule rejecting such testimony is correct on principle. If a declaration against interest is admitted, while a self-serving declaration is rejected, why should it not be true that conduct showing guilt is admissible, while conduct alleged to show the opposite is rejected ? Nothing can be better settled than that a litigant cannot manufacture testimony in his own behalf. This is but a form of this familiar principle. If the rule announced by Wigmore is correct, a prisoner who deliberately refuses to escape is but availing himself of the opportunity to manufacture testimony, for himself—a thing which can never be permitted. Testimony as to a damaging admission made by a prisoner on trial is admitted manifestly because it shows a consciousness of guilt; but it will never be contended that the'same prisoner can proclaim his innocence and have the benefit of such declaration on the trial as showing a “consciousness of innocence.” And yet. in the opinion of the majority of the court there can be no logical distinction between acts and words in this connection.

Chief Justice Whiteield,

while differing from the majority on this point, and agreeing with Wigmore’s announcement of the rule, does not regard such evidence as of high value one way or the other, and therefore concurs in the result, since, as he thinks, the guilt of the defendant is manifest and the result could not possibly have been affected by this error of the court.

Affirmed.