Long v. State, 81 Miss. 448

Long v. State

81 Miss. 448 | Miss. | 1902

Whitfield, C. J.,

delivered the opinion of the court.

The court erred in admitting in evidence the testimony of Lilly Lawson-, showing she told Mrs. Long as to her father’s getting his pay on purpose to go to Memphis, without proof also that the defendant had knowledge of this. The wife’s knowledge is not the husband’s knowledge.

It was error to permit the justice of the peace to attach his certificate and signature at the close of the trial. This should be done before the papers are delivered to the circuit court. Since the law makes such an examination, duly taken and certified, the exclusive evidence of the testimony in the committing trial, it is of the last importance that the material provisions of the statute should be strictly complied with. In Gilbert v. State, 78 Miss., 300 (29 South., 477); Cunning’s case, 79 Miss., 284 (30 South, 658), and Steele’s case, 76 Miss., 389 (24 South., 910), we attempted to make clear the law on this subject.

We would not, for this second error alone, reverse this case, however. But it was error to allow the examination, when certified, to be read in evidence, for the reasons that: (a) Two witnesses were examined in the committing trial, whose testimony was not taken down at all; and (b) the testimony of one witness, which was taken down in the said committing trial, although said witness was not examined as a witness in the cir*453cuit court trial, was nevertheless read to the jury. The learned circuit judge had correctly allowed parol proof of what had been testified to in the committing trial, on the obviously correct ground that the papers sent up by the conservator of the peace, the mayor 'of Amory, were wholly incompetent. His' error was in not adhering to this correct view, and not confining the district attorney to that course.

The observations of the district attorney to the effect that the defendant’s purpose was not alone to commit the crime, with which he was charged, but another, the vilest known, was, we are bound to say, highly improper. The statement could have, in this country, but one meaning, and that at once understood; and, when understood, it would almost surely inflame a jury beyond control. The appellant was on trial for burglary, and not rape.

Reversed and remanded.