Hudson v. State

56 So. 345 | Miss. | 1911

McLain, C.

Appellant was tried and convicted at the January term, 1911, of the circuit court of Harrison county, for unlawfully retailing liquor, and was sentenced. From this judgment and sentence he appeals to this court.

In our judgment, the chief assignment of error is as follows: “The court erred in not permitting the witness, Loren King, to answer the question, on cross-examination by the defendant, if he did not, before the grand jury in Harrison county, Mississippi, state, when this indictment was found, that he did not buy whiskey from the defendant, John Hudson, during the year 1909, or at any other time.” To this question the state objected, and the objection was sustained by the court. We think this was error. This witness could not be impeached until the proper predicate had been laid. Cheatham v. State, 67 Miss. 335, 7 South. 204, 19 Am. St. Rep. 310; Fulton v. Hughes, 63 Miss. 61. Several witnesses, all of whom were members of King’s family, testified that they had bought whiskey from appellant, but no two testified to the same sale.

This was a material inquiry, going to the credibility of this witness for the state. “The witness whom it is desired to impeach may, upon his cross-examination, be asked if he has not made statements out of court, relevant to the guilt of the accused, which are inconsistent with or contradictory of his testimony.given on direct examination. All the circumstances attendant upon the extrajudicial declaration must be embodied in the question. If he does not admit that, upon the particular occasion designated, he made the statement, it may be proved that he did in fact make it. ’ ’ Underhill on Crim. Ev., section 238. This was an attempt on the part of the defense to impeach the witness, by showing that he had made a different statement before the grand jury. The court refusing to allow this, the defense was not able to lay a predicate for impeachment. An impeachment could not be established until the proper predicate had been laid. In our judgment, the court erred in not admitting this line of inquiry. It was certainly not irrelevant matter, but, on tbe contrary, it was very material, as it went to tbe credibility of tbis witness.

For tbis error, we tbink tbe case sbonld be reversed.

Reversed and remanded.

Pee Curiam. Tbe above opinion is adopted as tbe opinion of tbe court, and, for tbe reasons therein indicated, tbe judgment is reversed, and tbe cause remanded.