110 So. 589 | Miss. | 1926
Fraze was the principal witness for the state. According to his testimony, appellant owned the still in question, and employed the witness, Fraze, to manufacture liquor on the still. Fraze was caught by the officers in charge of the still in question while engaged in the manufacture of whisky. He was indicted, and pleaded guilty to the charge of manufacturing whisky. He was arrested and put in jail with the three Brazils and a man named Cummings. Fraze was put on the stand as a witness for the state. On cross-examination he was asked by appellant's attorney whether or not he stated, while in jail, to the Brazils and Cummings that appellant had nothing to do with the still, to which question he replied that he had made no such statement. The appellant's attorney then asked the witness whether or not when he came back to his cell in the jail from down stairs that he had stated that he had told all he knew, and a lot more that he did not know. In answer to that question, the witness stated that he might have made such a statement because he was worried; and then the witness proceeded to testify regarding a statement that the Brazils and Cummings made to him, which statement tended strongly to show that appellant was guilty of the crime *219 of which he was charged. As soon as the appellant's attorney saw that the answer of the witness to the question was not responsive thereto, and where it was leading, he objected to his answer. The court overruled appellant's objection. The district attorney then said to the witness: "Go ahead." The witness then proceeded to testify that the Brazils and Cummings told him that appellant had told them while in jail, in substance, that the still in question belonged to him (appellant), and that the witness Fraze was a mere hireling of his for the purpose of running the still. There was no further objection by appellant to the testimony of the witness, nor did appellant ask the court to rule out any particular part of the evidence of this witness. The action of the court in admitting the testimony of this witness is assigned by appellant as error.
The attorney-general concedes that the testimony of the witness Fraze as to what the Brazils and Cummings told him in reference to what appellant told them was hearsay and ought not to have been admitted, but argues that appellant is not in a position to object to the action of the court in admitting the evidence, because it was brought out in response to a question by appellant's attorney; and for the further reason that, even though the testimony was not responsive in its entirety to the question propounded by the attorney of appellant, it was responsive in part, and it devolved upon appellant to ask the court to separate the bad from the good, and rule out that part of the testimony not responsive to the question, and this was not done. We think a very material part of the witness' answer went wholly beyond the question propounded to him by the attorney for the appellant. However, the well-established rule is that where the testimony of a witness is in part admissible, and in part inadmissible, the party seeking to have the objectionable part ruled out cannot accomplish that purpose by objecting to the whole. He must point out to the court the objectionable part, so that the court may intelligently *220 rule on it. He is not entitled to have the whole testimony ruled out, and the court cannot be put in error simply by a general objection to the testimony of the witness. Where the rule is not complied with, the party in default must suffer the consequence. We hold, therefore, that the error of the court in the admission of the objectionable testimony of the witness, Fraze, was brought about by the fault of both appellant's attorney and the district attorney.
The witness Fraze, on cross-examination of appellant's attorney, was asked, without fixing the place, where the conversation occurred; whether or not the witness in August, 1925, had a conversation with one Stuart, in which he told Stuart "it was getting too damn hot to dig post holes." and he was going to make liquor; and whether or not after that Stuart came across him "in the woods making whisky on the Hollymound plantation," and made him run off and leave there. The witness denied that he made the statements. Appellant's attorney placed Stuart on the witness stand to contradict the witness Fraze in that respect, but he was not permitted to do so by the court. The appellant assigns this action of the court as error. We think it was wholly immaterial whether or not the witness Fraze had made whisky at other times and places, and therefore wholly immaterial what he said to the witness Stuart in reference thereto. Appellant was on trial for possessing a still.
H.C. McMaster is the father of H.G. McMaster, marshal of Belzoni, and a special deputy sheriff assisting the officers who found the still in question. H.G. McMaster was a material witness for the state. H.C. McMaster was a member of one of the jury panels for the week in which appellant was tried. On his voirdire examination he testified that he would weigh his son's testimony in the case as he would that of any other witness. In all other respects he qualified as a juror in the case. Appellant challenged H.C. McMaster as juror for the cause. *221 His challenge was disallowed by the court, and before the completion of the jury appellant's peremptory challenges were exhausted. Appellant contends that the court erred in accepting H.C. McMaster on the jury, thereby requiring appellant to get him off the jury by exercising one of his peremptory challenges. The relationship of a juror to a witness, either by affinity or consanguinity, regardless of how close the relationship may be, does not disqualify such juror. 16 Ruling Case Law, p. 259, section 77.
We find no harmful error committed by the trial court.
Affirmed.
