80 Miss. 499 | Miss. | 1902
delivered the opinion of the court.
This case is not like that of Matthis {ante, 491) or Lester. In those cases the guilt of the parties was shown by overwhelming evidence of the most positive character.' This appellant was not present at the killing, and the effort here is to show that he was an accessory before the fact. Rut this rests wholly
On the trial of this- case the witness P. E. Mathews was permitted to testify to an alleged threat. What he says on that subject is as follows: “Q. State to the jury if you have ever heard him make a statement with reference to the killing of revenue officers? If so, state to the jury when and where it was, and what was said? A. Yes, sir; I heard him make a statement. (Counsel for defendant objected. Objection overruled. Exception taken.) Q. Tell the jury when and where it was, and what was said? A. I don’t remember exactly the date. It was some little time after Dave Bogers was shot at out here south of town. I had a conversation with him. By the court: About how long ago ? A. It was something over a year ago. My recollection is it was in the summer or fall of 3900. Q. At that time what was Dave Bogers? A. Deputy United States marshal. By court:: State the words that were said by Whit Owens ? A. I had a conversation with Mr. Owens here in town, near the federal court building. His statement to me was, if the revenue officers didn’t quit bothering out there, there would be some more of them. shot. (Counsel .for defendant objected as incompetent, too remote, etc. Objection
In this case, in which the prisoner was sentenced to death, the court refused to charge the jury for defendant as follows: “The court instructs the jury that if they believe from the evidence that any witness has heretofore, or on this trial, sworn falsely to any material fact in this case, they may disregard the testimony of such witness altogether.” In the other case the court refused an identical instruction to the defendant in the following words: “The court instructs the jury that if they believe from the evidence that any witness has heretofore, or on this trial, sworn falsely to any material fact in this case, they may disregard the testimony of such witness altogether.” Both these instructions should have been given in the respective trials. The fact that the court had charged the jury, in an instruction telling them that they were authorized to-convict on the testimony, of the accomplice alone, that they were the sole judges of the credibility of the witnesses, does not cure this error, on the peculiar facts of this case; for here the whole case for the state depended absolutely upon the testimony of this one witness, Lester. Without his testimony it was, of
The court also refused in this case, in which the prisoner was sentenced to death, to give the following charge: “The court instructs the jury, for the defendant, that witnesses may be impeached by showing that they have made statements at other times and places, and have testified under oath at other times and places, materially different from their testimony on the witness stand. And the jury may disregard the testimony of any witness or witnesses who are shown, to their satisfaction, to have willfully made statements or given sworn testimony at other times and places materially in conflict with their testimony on the witness stand in this case. But this testimony to impeach the witness is for the purpose of showing such witness to be unworthy of credit, and not directly to establish the guilt or innocence of the defendant.” It is impossible to conceive for what reason this instruction was refused. It is accurately drawn, peculiarly appropriate under the facts in this case, and eminently proper to have been given, and its refusal was a grievous error against the appellant. .
Looking at these three errors, each one of them most vital and material to a fair and impartial trial, remembering that the conviction of the defendant rested exclusively upon the testimony of the witness, Lester, so far as the facts showing his connection with the crime are concerned, is it not manifestly the plain duty of this court to reverse? We are bound to administer the law justly and impartially. If the jury, believing the witness, as they» had a right to do, had found him guilty, the court having committed no reversible error in its rulings on the evidence and instructions, we would have disregarded all minor errors and affirmed the conviction; but it is impossible for any court of last resort to affirm a conviction resting, like this, on the solitary testimony of a callous and shameless perjurer — a confessed perjurer — where the court has committed three errors, each vital, in the highest degree, to a
Reversed and remanded.