Bell v. State, 43 So. 84

Bell v. State

43 So. 84 | Miss. | 1907

Cali-ioon, J.,

delivered the opinion of the court.

The witness Taylor had no independent recollection of what the witnesses testified to in his court. Even the paper he had, as justice of the peace, there written, did not refresh his memory, for he had none, further than that he had taken down the testimony of the witnesses as delivered, and he knew it was correct. Under this state of facts the court did not err in receiving his testimony from the paper. In this conclusion we are not fully sustained by Cooper v. State, 59 Miss., 267, because there, after referring to the paper, the witness could recollect, while here he could not. But we are fully sustained by N. O. R. R. Co. v. Echols, 54 Miss., 264, and by the elaborate treatise in 1 Wigmore, Ev., p. 829, et seq., and, as to criminal cases, 2 Wigmore, Ev., sec. 1398, et seq.

It was error to give the state’s first instruction. The doctrine, ‘Falsus in uno, falsus in omnibus,” always dangerous in trials, should never be stated so broadly 'as here appears. The fact that a witness has sworn falsely to a material fact is not enough, unless he did it wilfully, knowingly, or corruptly. Railroad Co. v. McCoy, 85 Miss., 392, 37 South., 766, and the other cases cited in the argument of counsel for appellant.

It was error to give the state’s second charge. The sole defense here is that the shooting was not by design, but accidental, and the facts were shown by eyewitnesses, so that Raines v. State, 81 Miss., 498, 499, 33 South., 19, 21, is pre*111cisely in point. We approve what is there said, on similar conditions, that “the third instruction for the state, which is based upon the principle of law that one is presumed to intend what he does, and the fourth instruction, which declares that malice may be inferred from the use of a deadly weapon, are inapplicable to the facts in this case. . . . Here the only debatable point before the jury was whether the gun was deliberately or accidentally fired.” This is not a case for the entertainment of legal presumptions from the use of a deadly weapon. The instruction should have included the idea that the shooting must be believed to have been by design — not accidental. Hibbler v. State, 87 Miss., 362, 39 South., 896.

Reversed and remanded.