Booze v. Yazoo City

48 So. 820 | Miss. | 1909

Mayes, J.,

delivered the opinion of the court.

We take no notice of any of the objections urged by counsel for appellant, other than what shall be stated in the’ opinion, as it is our view that none of the objections have any merit, save the one herein discussed.

The testimony shows that one Carpenter was employed as a detective to ferret out the blind tigers (persons engaged in the unlawful sale of intoxicating liquors) in Yazoo City. Some time in October, 1908, he approached one Pierce Kennedy and asked him if he could get him some whiskey, saying at the timé that he (Carpenter) had the money if Kennedy knew where to get it. Kennedy stated he thought he could get the whiskey, whereupon Carpenter gave him seventy-five cents and Kennedy left, shortly returning with a pint of whiskey. Kennedy was introduced as a .witness on the part of the state in the prosecution against Booze, and testified that he bought the whiskey from the defendant, and if this conviction is to stand it rests alone on the testimony of Kennedy. On cross-examination the defendant offered to show that, on the very day when Kennedy claims to have bought the whiskey from him (the defendant), Kennedy had gotten out of the express office a gallon of whisr key himself. This- testimony was objected to, and the court sustained' the objection. The defendant, after denying that he-had sold any whiskey to the prosecuting witness, Kennedy, then-offered to prove by Howard, the agent of the'American Express Company, that the records in his possession as express agent show that, on the very day it is claimed by Kennedy that the-sale of whiskey was made to him by Booze, the defendant, Kennedy himself had a gallon of whiskey which he had that day gotten from the express office. The defendant also offered to prove that on that day Kennedy had told other parties he had whiskey and could let them have it, and that he did let other parties have whiskey. All this testimony was objected to and excluded, and in this, we think, under the peculiar facts of this case, the-court erred.

Any testimony which tended to show that the testimony of Kennedy, the prosecuting witness, was untrue, or which would raise in the minds of the jury a reasonable doubt of its truth,, should have been admitted. Carpenter only knew that he had given Kennedy seventy-five cents, and that Kennedy had taken-the money, and kept it, and returned with the whiskey. Kennedy disclaimed selling the whiskey to Carpenter, and asserts that he bought it from Booze, which Booze denied. As tending to support his denial, he offers to show that Kennedy did on that day have whiskey; that he had told others that he had it, and offered it to them. This testimony should have gone to the jury for what it was worth, as tending to show that the claim of Kennedy that he bought the whiskey from the defendant and did not sell it himself was untrue. In the language of Mr. Wig-more, this testimony should have gone to the jury “because, if it really was of no appreciable value, no harm is done in admitting it; while, if it is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative, but should afford the accused every opportunity to create that doubt. A contrary rule is cruel to really innocent accused.” 1 Wigmore, Ev. § 139.

Reversed and remanded.