Slaydon v. State

58 So. 977 | Miss. | 1912

Cook, J.,

delivered the opinion of the court.

Appellant was tried, convicted, and" sentenced to a term of five years in the penitentiary, under an indictment charging him with the larceny of a steer belonging to one Hugo Smith.

The steer alleged to have been stolen was sold to a cattle dealer by appellant, and by the dealer shipped out of the state. No witness who claimed to have known Hugo Smith’s steer ever saw the steer while it is alleged it was in the possession of appellant, or after it was delivered to the cattle dealer. The state endeavored to identify the steer sold by appellant as Hugo Smith’s missing steer, by the descriptions of the steer given by the buyer to the jury. Smith’s steer was variously described by the witness, claiming to have enjoyed a personal acquaintance with the animal; but the state insists that there was no real variance in the testimony of the state’s witnesses, and that the steer sold by appellant was undoubtedly the property of Mr. Smith, and this is conceded for the purposes of this review.

Appellant claimed that he bought the steer from one Goss a resident of Slidell, La., together with several •other steers, and when Smith claimed the steer sold by him to Odom, the cattle dealer, appellant told him how he came into the possession of the steer. Appellant endeavored to persuade Smith to go to Louisiana to see -Goss about the steer, and offered to pay his way; but when Smith accepted his proposition, and agreed to go •and see Goss, appellant informed him that he had just talked with Goss over the phone about the matter, and Goss advised him to submit the matter to arbitration. The state, in the course of the trial, offered evidence to prove that appellant did not have any such conversation with Goss over the phone, and this evidence went to the jury, over defendant’s objections.

The state made all of this proof about appellant’s proposition to pay Smith’s expenses to Slidell, for the purpose of contradicting him on his alleged conversation over the telephone. There was certainly nothing fending to demonstrate defendant’s guilt of the crime charged against him contained in his proposition to pay •Smith’s expenses to Slidell, and there could be no significance in his withdrawal of the proposition. If he gave a false reason for doing a thing which was not in Itself incriminating, or which could not be affirmatively proven as evidential on the main issue, then this impeachment of the witness was upon an entirely immaterial matter, which tends to switch the minds of the jury from the main line to side tracks leading nowhere.

It seems that appellant had searched the country for the steer for several months before the alleged larceny, and that he made inquiries of numbers of people during this time about the steer, giving them a description of the color and marks of the animal, and describing him as an ox he had bought from Goss. He offered to prove these facts as circumstances tending to establish his good faith, and tending to overthrow the imputation of stealing, even though the steer sold by him was the property of Hugo Smith. All of this evidence was rejected by the court, at the instance of-the state, for the reason that these acts and statements were self-serving acts and statements, and not a part of the res gestae.

There is much authority in support of the correctness of the ruling of the trial court, but we think this court has recently announced a different and more rational rule in the case of Johnston v. State, 58 South. 97. The doctrine applied by this court in the case cited is in line with the views of Mr. Wigmore in his great work upon the Law of Evidence. Speaking’ of the rule which excludes the acts and statements of the accused upon the ground that a party must not be allowed to “make evidence for himself,” he says: “The notion of ‘making’ —that is, ‘manufacturing’ — evidence assumes that the statements are false, which is to beg the whole question. Then it is further suggested that at any rate the accused, if guilty, may have falsely uttered these sentiments, in order to furnish in advance evidence to exonerate him from a contemplated crime. But here the singular fallacy is committed of taking the possible trickery of guilty persons as a ground for excluding evidence in favor of a person not yet proven guilty, in other words, the fundamental idea of the presumption of innocence is repudiated.” Wigmore on Evidence, vol. 3, sec. 1732.

In the instant ease, to exclude the evidence offered was to assume, first, the guilt of the accused; and, second, that he did and said these things in order to furnish an exoneration of himself of the crime then contemplated. It is hardly conceivable that defendant had planned the stealing of the steer for months before he actually stole him, and in preparation of a defense he roamed over the country searching for the steer and “making evidence for himself.” The enforcement of such a rule is to deny the defendant the benefit of the presumption of innocence.

Among other things, the district attorney asked the defendant, when he was testifying as a witness, if he was not indicted for stealing another and different steer, belonging to another person than Hugo Smith. This was. all objected to, but the objection was overruled. It is not necessary to cite authorities to show that this was error.

Reversed and remanded.