Brown v. State, 66 So. 288

Brown v. State

66 So. 288 | Miss. | 1914

Cook, J.,

delivered the opinion of the court.

Appellant was jointly indicted with his brother, Alf Brown, for the murder of Will Jones. Upon his motion a severance was granted, and the jury returned a verdict finding appellant guilty of manslaughter.

During the progress of the trial Alf Brown was called as a witness for appellant, when Mr. McBee, an attorney at law, made the following statement to the court:

“Tour honor, we represent this defendant. He is charged in a joint indictment with this defendant for murder. We, as his attorneys, object to his testifying to any matter he may be asked that may be competent or material, as it might prove or tend to prove his connection with it. For that reason, as his attorneys, we object to his testifying.”

Mr. Hill, another attorney for Alf Brown, then said:

“He has a right to seal his lips until he takes the stand in his own behalf, in his own defense.”

Mr. Patrick, counsel for appellant, replied:

*50“If it is improper for Mm to answer the questions, when he takes the stand, and the question is asked, then let the objection be raised.”

The court:

“I don’t think, under the circumstances, the court could force him to take the stand at all. That objection is sustained. ’ ’

■ Exception to the ruling of the court was reserved by defendant.

A witness may waive his privilege and answer questions which the law would not otherwise compel him -to answer. The privilege under discussion is personal to the witness as such, and can be insisted upon, as a matter of right, by him only. In Newcombe v. State, 37 Miss. 403, the court announced the rulé as follows:

“If this objection had been made by the witness, it might have exempted her from answering the question. But this is the privilege of the witness, given him by the law, and secured to Mm by the Constitution, for. his own protection. It was the duty of the court to apprise him of this privilege — and that was done here — -but not to prevent her from answering if she thought fit to answerj after being informed that she had the right to decline an answer. 1 Greenl. Ev. 451. And counsel will not be permitted to make the objection.”

TMs rule, as above stated, is supported by the leading authorities: Jones on Evidence, sec. 890; Elliott on Evidence, 1007. See, also, Head v. State, 44 Miss. 731; White v. State, 52 Miss. 216.

Counsel, who objected for the witness, were not attorneys of record, in the case on trial. It seems that they were retained to defend the witness, who was jointly indicted with appellant, and who was not then on trial. . It was the duty of the court to have informed the witness of his'privilege, and to have left it to the witness alone to waive or claim this protection afforded him by the Constitution. So far as the witness is concerned, there is *51nothing in the record to suggest that he was unwilling to testify. His lawyers were unwilling, but the witness himself said not a word. He was not even sworn as a witness. The defendant was denied the benefit of his codefendant’s evidence, although, so far as the record discloses, the witness was perfectly willing to testify.

It is our opinion that the attorneys, as officers of the court, might properly ask the court to apprise the witness of his rights; but certainly they have no right to object to his testifying, if he desires to do so. The court cannot assume that the witness is unwilling to give evidence, unless the witness so states.

Reversed and remanded.