| Miss. | Oct 15, 1892
delivered the opinion of the court.
The testimony of the witnesses, Dornbush and McLaurin, offered in rebuttal, for the purpose of impeaching the witnesses, Anderson and Tipton, should have been excluded. The impeaching witnesses Avere not directed and confined to the inquiries propounded to Anderson and Tipton in laying the foundation for the introduction of impeaching evidence. They were asked generally to state Avhat took place or what passed on the occasions referred to, and were permitted to state matters of fact not embraced in the predicate laid for contradiction, as well as to repeat to the jury the conclusions of mind arrived at by Anderson and Tipton.
The witnesses sought to be impeached should have been distinctly informed as to time, place and persons present when the supposed conversation took place, and the matter as to which it was designed to call impeaching witnesses should have been clearly and distinctly presented to their attention. And to the matters thus inquired about, the impeaching witnesses should have had their examination strictly confined, and should not have been asked to state what took place on the occasions referred to, and, in response, allowed to go outside of and beyond the issue presented in the predicate laid. The examination of the witness Dornbush Avas especially objectionable. By Dornbush’s own vacillating statements it is left uncertain whether Tipton was even present when the conversations with Andei’son occurred, and which, by assent,' Tipton Avas supposed to have participated in to the extent of making Anderson’s statements his own, as Avas attempted to be shoAvn bAr Dornbush. The latitude of examination and reply, in the rebutting testimony, was unfair to the witnesses sought to be impeached, as AArell as hurtful to the appellants, and, because of the errors assigned in this particular, the judgment must be reversed.
The contention of counsel for appellant, that the gist of the complaint is the forcible entering of appellee’s house, and that all its other recitals and averments, including the violent
There was no error in the refusal of the court to give the eighth, ninth and tenth instructions asked by appellants. We know of no reason why a litigant in a civil case shall be required to put upon the stand every witness, material or immaterial', whom he has had subpoenaed, and counsel have cited no authority in support of this view. It is certainly not the rule in this state, where it has been held by this court that, in prosecutions for the highest crimes, the counsel for the state cannot be required to put upon the stand all the witnesses whose names are indorsed on th,e indictment, and who are actually present in court. Morrow v. State, 57 Miss. In that case, the known bias of the two eye-witnesses to the killing, whom the state’s counsel refused to introduce, was sufficient warrant for the counsel’s declining to put them upon the stand, and vouch'for their credibility. We are wholly unable to see why, in the case at bar, the appellee should be required to put upon the stand, and vouch for their credibility, witnesses whom she knew to be not in harmony with the statements she had already made under oath, and which fairly made out her case, if unchallenged and unopposed. To have done so would have utterly destroyed the case she had made by her own evidence; and this she could not have been required to do. But, in view of the fact that the witnesses whom the appellee subpoenaed and refused to examine, were in court, and actually put upon the stand
The views hereinbefore expressed will largely obviate the necessity for any large examination of the fourth and chief contention of counsel for appellants. We have already declared that the complaint did not charge a burglary by appellants, but that the gravamen of her declaration was the forcibly taking and carrying away, against appellee’s will, of the Dornbush check. The theory of the learned counsel is repudiated by us, and there was no room for any application of the presumption of innocence. When the onus probandi has been successfully borne by appellee to the extent of reasonably satisfying the mind of the jury as to her right to a recovery on the substantial matter charged in her declaration, she has met the requirement of law, and presumptions of innocence on the part of appellants could not be thrust at appellee, with the demand that she now destroy them, in addition to proving her case by a preponderance of the evidence. The infirmity of the theory of counsel is that it rests upon the baseless assumption that a recovery was sought for breaking and entering the house of appellee, and not for the depriving her of her property. The circumstances recited by way of aggravation of damages, are erroneously believed by counsel to constitute the gist of the offense complained of.
What is demanded now to be further said on the fourth contention of appellants, as to the action of the court in giving appellee’s instructions and refusing appellant’s seventh charge, may be compressed into few words. The counsel are mistaken in supposing that the jury was authorized by the instructions complained of to award vindictive damages twice in this case. The mental suffering of appellee, the jury -was clearly and properly informed, was an element to
~We find no error in the action of the court in giving and refusing instructions.
Reversed.