Brown v. State, 72 Miss. 95

Brown v. State

72 Miss. 95 | Miss. | 1894

Woods, J.,

delivered the opinion of the court.

We can discover no error of the court in admitting the testimony of the state’s witness, Sledge, except in that particular where the defendant was said to have offered to sell whisky to the witness. This was incompetent as corroborating evidence of a sale alleged to have been made to a third party, and would doubtless have been excluded if objection had been made to it when offered. But this was not done. After the witness had finished all his evidence, the record shows to its admission the defendant excepted. If this is held to mean (which is the interpretation most favorable to the prisoner) that, after all the evidence of Sledge had been introduced, the prisoner moved to exclude it, and the court overruled the motion, and exception was taken to the court’s ruling, then no error was committed. It is not permissible for one to experiment with a court by consenting, by silence, to all the evidence of a witness, and then move to exclude all the evidence because some part was incompetent. All the evidence was competent, except in the one particular already adverted to, and this, no doubt, the court would have excluded if attention had been called to it by a specific objection. To have excluded all the evidence would have been palpable error, and this was what the court was asked to do, as we suppose.

The plea of former acquittal was not sustained by introduction of the indictment in another case with the judgment of acquittal. It is perfectly well settled that, to make good the plea of former conviction, the party must show the record of the supposed former conviction, but he must show, in addition, by evidence aliunde, the identity of the offense of which he was formerly acquitted with that charged in the indictment to which he is pleading his former conviction. In the case of Rocco v. The State, 37 Miss., 357, this question was supposed to have been definitely settled. That decision has stood for thirty-five years as unquestioned authority, and it must continue to so stand.

*98By the instruction given for the state, of which complaint is made in the second assignment of error, the learned court undertook the dangerous, if not impossible, task of defining that which is generally held to be indefinable. Said the court to the jury: “You are not required to know that defendant is guilty, but if you conscientiously believe, from all the testimony, he is guilty, then you should convict him, for then you have no reasonable doubt, and the case is made out to a moral certainty.” We suppose that a conscientious belief is belief as a matter of conscience, and has reference to that which commands the assent of the moral sense of mankind. But evidence is addressed to man’s reason with the primary purpose of convincing the intellectual faculty, and, in criminal jurisprudence that evidence is required, in order to warrant a jury in pronouncing guilty one accused of crime, which, in quality and degree, in character and strength and quantity, satisfies mind and conscience. Evidence may be offered which may be conscientiously, that is, faithfully, believed, and yet fall far short of convincing the mind of the truth of the proposition which it is offered to support and demonstrate. We fear that the instruction which defined conscientious belief to be such as left no room for reasonable doubt, and rose to the height of mora], certainty, was erroneous.

In the matter of asking instructions, the beaten way is the safe way; the known paths are the sure ones.

Reversed.