Levert v. StateLevert v. State
The appellant in this case was convicted of manslaughter in the first degree for the killing of her husband by stabbing him in the neck with a pocket knife. There seems to have been no eyewitness to the event. The defendant admitted the killing in a confession and as a witness for herself, but claimed self-defense, and her evidenсe tended to establish that defense.
The State introduced Frank Cornelius as a witness, who testified that a short time before the stabbing he was a visitor at the house of defendant and her husband, and about five minutes aftеr he left the house he heard some words, and saw defendant lead her husband out of the back door and place him on a porch of a nearby house, where he died. She at first accused Cornelius оf doing it, but the next morning admitted that she did it. Cornelius testified that defendant and deceased were embroiled in argument while he was there, and threats were mutually passed.
The State was permitted to show by the witness that hе and defendant each drank •whiskey while he was there, and offered to prove that he bought the whiskey which he drank from defendant. There were several questions which sought to elicit such testimony. To all of which the court sustained objection. When defendant was testifying as a witness on cross examination, she was askеd by the solicitor if she sold whiskey down there, and she answered “no”. There was no ruling in that connection. The sоlicitor in the argument referred to Cornelius (Screwworm) as being “out there buying whiskey, as usual.” On objection, the сourt excluded the argument and instructed the jury not to consider it.
The defendant made a motion for a nеw trial, which was denied.
The Court of Appeals first held that there was no error, and observed: “In view of the court’s rulings and instructions to the jury in connection with Cornelius’ testimony, and the abundance of evidence tending tо justify the verdict of guilty rendered in this case, we are unwilling to say that the jury disregarded the court’s instructions and that the verdict resulted from passion and prejudice engendered during Cornelius’ examination.”
On applicаtion for a rehearing that court, on careful consideration, changed its ruling by stating:
“In the face of the court’s action in sustaining the objection to the questions pertaining to the sale of whiskey by the apрellant the solicitor’s reference in his closing argument to such sales cannot be regarded lightly. The сourt did sustain the appellant’s objection to such line of argument, and instructed the jury rather perfunctorily to disregard same.
“We of course cannot with certainty measure the substantive injury to appellant’s cause by the above occurrences. We are certain however that the possibility of substantial injury is real. This being so justice demands that this case be submitted to another jury free of these extraneous influences.” (Italics ours.)
The proposed evidence that Cornelius bought the whiskey from defendant was evidently a part of the оccurrence in which deceased was killed. Of course the fact of her drinking whiskey with the witness then and there, only a few minutes
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before the killing, when she was quarreling with deceased, was admissible. The general rule is that all the acts,' words, signs and declarations of defendant indicating hostility to deceased immediately prеceding the encounter, Blair v. State,
The converse is true that if they do not throw light on sоme material aspect of the transaction, they are not admissible.
We cannot see the rеlevancy of the proposed evidence of Cornelius that he bought the whiskey they drank from defendаnt. We think the trial court ruled correctly in that respect, and so did the Court of Appeals.
The trial cоurt made no ruling contrary to that principle, and denied a motion for a new trial predicated on the manner of conducting the examination and on the argument of the solicitor, which was excluded by thе court.. The Court of Appeals reversed on rehearing because of the “possibility of substantial injury.” Unless the occurrence on which the motion was based, which did not involve a ruling adverse to appеllant,
probably
injuriously affected the substantial rights of appellant, there was no reversible error in overruling the mоtion. Sometimes the cumulative effect of constantly trying to inject illegal matter creates such а prejudicial effect which cannot be eradicated, so as to cause a probability оf improper influence by injecting the poison of bias into the minds of the jury. Blue v. State,
We think the Court of Appeals has not given effect to the principles applicable here-The judgment of the Court of Appeals granting the application for rehearing is reversed and the cause -is remanded to that court for further consideration on the basis-of the foregoing principles.
Reversed and remanded.