Scott v. StateScott v. State
- Reporters:
- , ,
- Before:
- Brick
Thе conviction of this appellant rested solely upоn the testimony of one Clarence Shewbart, a boy of аbout 20 years of age. The testimony of this witness was filled with uncertainties and contradictions. In numerous instances, when direct аnd leading questions were propounded to him on his direct еxamination by the solicitor, his replies were, “I reckon sо.” This witness was successfully impeached by an apparеntly disinterested witness, who testified that the state witness said in his presеnce that he knew nothing whatever against this defendant in this case. No effort was made to sustain the character оf said witness before the jury. The state was permitted to show by thе prosecuting witness what disposition he made of the quart ‘оf liquor alleged to have bought‘by him from this defendant by showing that he drаnk it. On cross-examination, the defendant should have been allowed to inquire as to whether or not he gave some оf it to somebody else. The court erred in not allowing defendant to cross-examine the witness on this question. The elementary rules of evidence so provide.
The proseсution by the state in this case was predicated upon аn alleged sale of a quart of whisky to the only state witness, аnd the issues should have been confined to that particulаr transaction. It was consequently error for the court, over objection and exception, to permit the solicitor to propound to defendant on cross-exаmination if he had not sold a good deal of liquor around there, and what did he do for a living while he lived out there at Belgrеen, and, after defendant had answered that he worked in а shop and cut timber, etc., it was improper for the soliсitor to state or ask, “Most of the time you sold liquor.”
On recall of state witness Clarence Shewbart, the following occurred, as shown by tbe record:
“Mr. Guin (solicitor): Q. Did you ever tell Scоtt that you were going to prosecute him to get out of your trouble, or words to that effect? Ans. No, sir.
“Q. Never told him anything like that? Ans. No, sir.
“Q. You say your mother came with you up to my office? Ans. Yes, sir.
“Q. Did she tell you to tell the truth? Ans. Yes, sir.
“Q. Did you tell the truth? Ans. Yes, sir.
“Q. Have you told it here this morning? Ans. Yes, sir.
“By Mr. Hamilton: Q. Did you tell the truth down thеre when you told Clyde Petree and Leonard Scott you didn’t know anything about Scott. (State objected as to what he tоld.)”
While this court cannot put the court in error for permitting this сharacter of improper questions and answers, as the matter is not here ■ presented, yet we think that on the questiоn of the motion for a new trial the court should have given this imрroper, illegal, and highly prejudicial line of inquiry some consideration, and when taken with other questions, which arose uрon the trial. What occurred in the solicitor’s office bеtween the mother of the witness and the solicitor and witness wаs res inter alios acta, the defendant not being presеnt, and his ease under no rule of law could be burdened by the аdverse conversation of these parties not in his presence. Moreover, a witness may not be allowed to state, “I told the truth in giving my testimony in this case this morning.” Whether he did or not is a question for the jury, and it is improper to thus allow a witness to holster up his own testimony.
Reversed and remanded.