Sherrod v. State, 44 So. 813

Sherrod v. State

44 So. 813 | Miss. | 1907

Whitfield, C. I.,

delivered the opinion of the court.

There is nothing in the record to show any action of the *862court upon the demurrer to the indictment. In answer to the certiorari the circuit clerk certifies that there was no action taken, and that none appears anywhere on the minutes of the court. It is well settled that in such case the demurrer should be treated as waived or withdrawn. 10 Ency. Plead. & Prac., 573. If there were any defects in the indictment, they were only such as might well have been cured by amendment.

The court erred in refusing to allow the defendant to testify that he did not owe Cynthia Green anything. Cynthia Green had asserted, on her direct examination, that he did. She was permitted, on her direct examination, to testify that her husband had a policy of insurance issued by the Knights of Honor for $400, and that Dr. Sherrod owed her that sum of money on account of that policy, and that he gave her $100 on that account, and was to pay her $50 along until he had paid the whole $400. The instrument in the case is a note for $100, payable in two installments of $50 each. Cynthia Green was asked, on cross-examination, whether she got $100 from Dr. Sherrod in payment of the policy issued by the Knights of Honor to-her husband, and whether Dr. Sherrod was going to pay her from time to time until he had paid $400, and she replied in the affirmative to all these questions, and stated further, that -he was paying her all he did pay her on account of that policy; The policy was sought to be introduced in evidence by the defendant, and it appeared from that, and the evidence in the case, that her husband had no policy, that it had lapsed, and that there was nothing due, of course, to her on such policy. Defendant’s counsel offered to show, in connection with this evidence referred to, that Dr. Sherrod was not an officer of the order at all, that he never collected any assessments, that the policy had lapsed, and that nothing was due to Cynthia Green; and the court excluded this testimony. This was erroneous. The testimony should have been received. Cynthia Green was then further asked on the cross-examination if she had not told certain witnesses that she did not remember whether her hus*863band had kept his insurance up or not, and, further, whether 'she had not told some of these witnesses that she knew he had not paid his assessments, and that the policy had lapsed. Much testimony along this line as to Cynthia Green’s statements was offered to be introduced. Further than this, it was offered to be shown hy the defendant, on the cross-examination of Cynthia Green, that she had told Andrew Courtney that she owed Dr. Sherrod $100. All this was offered to be shown on the cross-examination of Cynthia Green by Andrew Courtney, E. L. Haekworth, and Caroline Valentine. In addition to all this, appellant offered to' show by Ella Young that Dr. Sherrod went to Cynthia Green to get a payment on this alleged debt of $100, and that she recognized the debt, and said that she would soon be down to his office and pay him, and, specifically, that she (Cynthia Green) then said, after her husband’s death in the spring or summer thereafter, when Sherrod had tried to collect part of the alleged debt from her: “Ella, Dr. Sherrod certainly is a good man. He loaned me $100, and I am going to pay him. Anybody that would not pay Dr. Sherrod would not pay anybody.” All of the testimony which we have just set out was offered to be established, on the cross-examination of Cynthia Green and by the various witnesses above enumerated, but was excluded by the court. It should all have been admitted as going to show the motive of Cynthia Green in denying her alleged signature to the instrument charged to have been forged. It manifestly tended strongly to show that her testimony in denying that she signed the alleged note was probably false, for the reason that she was interested to escape liability. It all went to motive, and was therefore competent.

We do not at this time notice any other error assigned.

The judgment is reversed, and the cause remanded.