Brown v. State, 85 Miss. 511

Brown v. State

85 Miss. 511 | Miss. | 1904

Whitfield, C. J.,

delivered the opinion of the court.

Under the peculiar circumstances of this case, as disclosed in this record, it was fatal error to refuse to allow the defendant to *514show on cross-examination of Scott Thompson, introduced, by the state in rebuttal, the details of the previous difficulty. The state itself had shown on the cross-examination of the defendant himself that there had been a previous difficulty. The first questions asked by the state on this cross-examination disclose this fact. The case of Foster v. State, 70 Miss., 755 (12 South. Rep., 822), is conclusive of the proposition that, where the state itself introduces the previous difficulty, the defendant should be permitted to show the details and character of such difficulty. It is urged for the state that the assignment of error cannot prevail, because the record does not show what the details of the previous difficulties were — -neither that occurring some two weeks before the killing nor that occurring at a longer period— and authorities are cited to sustain this contention. But the complete answer, on this particular record, is that the counsel for the defendant did all in his power to state to the court, when the jury were retired, what these details were, but the court responded “that he did not know and did not care what the counsel was going to ask the witness.” When the counsel is not permitted by the court to state, even to the court, whilst the jury are retired and the competency of the testimony is under examination by the court, what the character and details of a previous difficulty are, the state cannot be heard to say here that a defendant shall not have the benefit of an assignment of error predicated on the refusal of the court to permit him to prove-the details of a previous difficulty, the state itself having proved that there was such a difficulty. The record in this case, we may add, makes it perfectly plain that the justice of the case required, after the state had been permitted to prove that such difficulty had occurred, that the defendant should be allowed to show the details of the difficulty, in order to demonstrate who was the aggressor in the difficulty resulting in the killing.

Reversed and remanded.