Mask v. State

1 Morr. St. Cas. 948 | Miss. | 1872

Lead Opinion

Fisher, J.:

This was an indictment returned by the grand jury into the circuit court of Marshall county, charging the defendants below with the murder of one Susan Elizabeth Smith.

The first error assigned relates to the defendants’ application for a change of the venue to some other county of the district. The application appears to have conformed to the requisitions of the statute. The court, however, permitted the prosecution to introduce and examine several witnesses, with a view of making a counter showing, and upon hearing their testimony refused the application, to which- action of the court the counsel for the defendants excepted. This point has recently been decided by this court in the case of Weeks v. The State, holding that such testimony could be introduced. But it is said that the court erred in refusing to permit the defendants’ counsel to cross-examine the witnesses. It appears by the record that the court refused any cross-examination whatever to be made. The rule on this subject is almost without exception, and is founded in both reason and the clearest principles of justice, that an examination in chief of a witness by a party, carries with it the right to a cross-examination by the adverse party; the object being to elicit the whole truth in regard to the particular subject of investigation before the court. We perceive nothing in the nature of this investigation to authorize in disregarding the rule. The witnesses doubtless intended to express nothing but an honest opinion in regard to the state of public opinion in the county; but this opinion, though potent in their estimation, might have been worth nothing in the sound and discriminating judgment of the court, when tested by the facts and circumstances brought out on a cross-examination. We are therefore of the opinion that the court erred on this point.

It is next assigned as error that the court erred in refusing to permit the counsel of the defendants to cross-examine a witness introduced on the part of the state as to matters not immediately connected with the direct examination. The witness stated, that on the day of the killing he saw the defendants in a certain road leading in the direction of the house of the father of the deceased, and that he overheard a certain conversation among the parties in relation to the road. The counsel for the defendants asked the witness on cross-examination if he had examined the wound of which the deceased died, and if so, to state its size and character. Upon objection being made, the court refused to permit the witness to answer this question, but stated to counsel that he could, at the proper time, if he so desired, make the witness his own and examine him as to this matter.

The general rule as laid down in all the elementary writers is, that the cross-examination, like the examination in chief, may be co-extensive with the issue, and that it is not confined merely to matters brought out by the direct examination. The object of the testimony was, no doubt, to form a link in the chain of evidence to establish malice or a conspiracy by the defendants; and conceding, for the sake of argument, that it could rise to this importance, it still would be but evidence taken by itself of an intention to commit murder, and not of the actual commission of it. Now, suppose the cross-interrogatory had been answered, the size and character of the wound given, and that it had appeared from the nature of the wound that the defendants could not have inflicted it with any weapon which they or either of them had about their persons or within their reach at the time, would not the force of the testimony elicited by the state have been completely destroyed. It is the doing of an unlawful act that gives the state the right to prove an unlawful intent, and hence, if the parties were not guilty of the act itself, to wit, the homicide, or concerned with others who were guilty, though they may have intended to do the act, yet their unexecuted intention, while it may have been highly criminal, could not be treated as murder, or as any other grade of homicide. What, then, would the proof, taken as a whole, establish ? The prosecution might say that we have by our testimony, taken by itself, created a presumption of malice; that is to say, an intention to commit murder. The defendants might reply, if you have,(the same witness proves that we could not have committed the murder. Whatever force, then, there might be in the first presumption, it would be destroyed by the second.

The testimony thus goes to the jury as a whole, and the question is, What fact does it tend to establish ? The answer is at once—none. Because the presumption of malice is rebutted by the other presumption that the parties could not have committed the deed.

We have treated the cross-interrogatory as having been answered for the purpose of illustrating the principle and of showing that, while it may frequently be convenient to confine a party to the matter embraced in the direct examination, yet it is a rule founded in good and safe policy to allow the cross-examination the same latitude which is allowed to the examination in chief. Circumstances will generally suggest to the judge presiding at the trial when there should be a departure from the rule. It is not deemed necessary to notice the. conflict which is said to exist in the authorities on this subject. The conflict has no doubt arisen from the fact that courts have sometimes misunderstood tbe object of a cross-examination, and have treated the testimony thus elicited as the defendant’s evidence instead of treating it as a part of the testimony of the party introducing the witness. When the state introduces a witness on the stand, he is there for the purpose of telling the whole truth of the matter relevant to the issue, and whether what he states is in response to the questions propounded by the prosecution or by the defendants, it is the testimony of the state, and as such must be received, weighed, and considered by the jury. It is not the case of a confession and avoidance, for the reason that murder, when confessed, cannot be avoided except by a plea of acquittal or former conviction. Nor is it the case of a party endeavoring to prove himself innocent, but of the state endeavoring to prove him guilty; and in making this proof, he is only insisting that the witnesses shall state what they are required by their oath to state—the whole truth relevant to the issue then under investigation.

In regard to the various other questions involved in the case, we are of opinion that the court committed no error. If we were to go into an examination of each question, we would be compelled to comment to some extent upon facts which ought to be left for the consideration of the jury, untrammelled by any opinion of this or any other court, as it is their province alone to weigh the evidence.

For the reasons already stated the judgment will be reversed, and a venire de novo awarded.

Smith, C. J., concurred.

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Dissenting Opinion

FLaNdy, J.,

dissented, as follows :

I cannot concur in the opinion of the majority of the court upon the point of the refusal of the court below to allow the examination of the witness, Walker, proposed on the part of the prisoners, as upon cross-examination.

It appears that that witness had been called and examined by the state, and testified merely that he had seen the prisoners on the day when the killing took place, riding together, and the direction from which they came, and that one of them inquired' of the others, at a particular point, which was the way to go. The prisoners thereupon proposed to interrogate the witness whether he had seen the wound of which the deceased died, and what was its size and character ? No connection between this alleged cross-examination and the statements of the witness in chief was shown or suggested, nor does it appear that the object of the cross-examination was to lay the foundation for impeaching the credit of the witness. The question presented, therefore, is, whether a witness called by one party and examined in chief upon a distinct and isolated fact, may be examined by the other party by way of cross-examination upon points not embraced in the examination in chief, but pertinent to the general merits of the case.

A difference of opinion upon this point exists between courts whose opinions are entitled to the greatest respect. In Massachusetts it has been held that a witness who has been sworn and examined as to an isolated fact, may be fully cross-examined as to the whole case. Moody v. Rowell, 17 Pick., 499. And the same rule appears to be sanctioned in England, in the case of Rex v. Brooke, 2 Stark. Rep. (3 Eng. Com. Law Rep.), 472. On the contrary, the weight and number of authorities sanction the rule that a party has no right to cross-examine a witness except as to the facts and circumstances connected with the matters stated in his direct examination, -unless it be to open the way to impeach his credit. Harrison v. Rowan, 3 Wash. C. C. Rep., 580; Ellmaker v. Buckley, 16 S. & R., 72; Floyd v. Bovard, 6 Serg. & Watts, 75; Philadelphia and Trenton Railroad Company v. Stimpson, 14 Peters, 448.

I consider this latter rule as founded on the sounder reason, and as establishing the better practice.

Cross-examination, ex vi termini, must relate to what has been stated by the witness on his examination in chief and it could not properly be denominated cross-examination when it extended to new matter about which the witness had given no testimony. Suppose the first witness introduced by the plaintiff testifies only to an isolated fact, as, for ■ example, the execution of a document relied on by the plaintiff as evidence. Would it be competent for the defendant to anticipate the merits of the case to be developed by the plaintiff, and, by way of cross-examination, to examine the witness as to matters which he supposed to be involved in establishing the plaintiff’s case, and go into the merits of the whole case ? Such a course would scarcely be sanctioned or tolerated by any court. And why % Because it would tend to subvert the regular order of presenting the case, and lead to confusion. And the same principle would seem to apply to the examination of every witness by either party in any stage of the cause; and this is shown by the general rule of practice in the examination of witnesses. That rule is, that the party calling the witness examines him in chief ; the adverse party then cross-examines him, and the party calling him then re-examines him, if necessary, for the purpose of explanation of the matters of the previous examination, and he is then dismissed. But if, upon cross-examination, the witness could be examined as to new matter not embraced in his examination in chief, this rule of proceeding must be abandoned. For the party by whom the witness was called would certainly have the right to cross-examine as to the new matter, and the other party would have the right, upon general principles, to re-examine. This would occasion two examinations of the same witness by each party, and the party not calling him would have the closing examination, which is contrary to principle and the established rules of procedure. That principle is, that a party calling a witness and examining him as to a particular matter, takes the affirmative of the matter proposed to be proved by him, and the witness is to be regarded as then introduced and before the court only for that purpose. The cross-examination is by way of response to the special matter proved and for the purpose of disproof or explanation of it. And the same principle which governs the pleadings between the parties should regulate the exhibition of the proof upon the trial. And as each pleading should be strictly in answer to that to which it applies, so the cross-examination of each witness should be confined to the matter testified in his examination in chief, in order to produce certainty and distinctness in ascertaining the facts to be proved.

This course, while it is sanctioned by the rules of logical proceeding, can be productive of no prejudice to a party desiring to prove by the witness other matters than such as are embraced in the examination in chief; for it is well settled that he may afterwards introduce him as bis own witness to prove any matters pertinent to the merits of the cause, and that the adverse party having called him, is thereby precluded from objecting to his competency or from impeaching his credibility.

It is no just objection to this view of the subject that the party, against whom the witness is originally called, should not be compelled to introduce him as his own witness to the new matter, and thereby preclude himself from impeaching his credit. For, if he would rely upon the new matter proved by the witness, it would be against his interest to impeach him, and it is to be presumed that, if he wished to impeach him, he would not introduce him to prove material facts in his case.

In nearly all the cases which are cited in the books to show that a witness called and examined as to a single fact, may be cross-examined as to the whole case, it will be found, on close examination, that they hold merely that, when a witness is examined as to one fact or point in the cause, he is a witness for all purposes pertinent to the issue, so far as to preclude the party introducing him, from discrediting him, or from objecting to him on the ground of interest. This is the extent of the rule held in Fulton Bank v. Stafford, 2 Wend., 285; Varick v. Jackson, ib., 200, 201; Morgan v. Bridges, 2 Stark Rep., 314; Murrill v. Inhabitants of Berkshire, 11 Pick., 273, 274; Webster v. Lee, 5 Mass., 336. And it will be perceived in these and other cases of the same character that the term “ cross-examination ” is used in a very loose and general sense to signify the right of the adverse party to avail himself of the testimony of the witness introduced on the other side generally, and not with reference to the mode in which the testimony of such witness is to be brought out. And none of these cases present the case of an effort, upon cross-examination, to bring out testimony not pertinent to the matter testified to by the witness in his examination in chief.

The case of Moody v. Rowell, above cited, is the only direct adjudication which I have been able to find sustaining that position, and believing it to be not well founded in principle or sustained by authority, I cannot accede to its correctness.

I am therefore of opinion that the ruling of the eonrt below upon this point is correct.