Smith v. State

| Miss. | Mar 15, 1912

Cook, J.,

delivered the opinion of the court.

Waiving all present consideration of the doubtful status of a second suggestion of error, we will endeavor to make plain our reasons for affirming this case. One might reasonably conclude an affirmance without an opinion necessarily implies that the appellate court has been unable to find any error of law in the record, and, further, that the evidence warranted the finding of the jury. However, learned and ingenious counsel for appellant seem not to appreciate this logical sequence.

Appellant was convicted of arson, and it is contended that the venue was not proven, and that the ownership-of the property burned was not proven as laid in the indictment. We think both the venue and ownership were clearly established by the evidence; in fact, these assignments of error were not seriously pressed, either in the briefs or oral argument. The principal witness for the state was a boy, three or four months less than fourteen years of age when he testified before the jury. One of the assignments of error complains that the trial judge allowed this boy to testify without first ascertaining that he had sufficient intelligence to appreciate the nature and binding obligations of an oath. The testimony of the boy sufficiently demonstrates the lack of merit in this-point. The defendant criticises the value and weight of his testimony, but only in very rare instances are defendants satisfied with the rope which the state uses to hang them. The jury believed the boy was telling the truth, else the verdict must have been different.

Nothing was said about this testimony, or the age of the witness, before verdict; but the point was made in the motion for a new trial. If the defendant had any reason to believe that the witness was not qualified, he should have suggested this to the trial judge, either before he was permitted to testify, or by a motion to exclude his evidence. A defendant will not be permitted to play fast and loose with the court. Courts are not forums in which to test the relative adroitness and ingenuity of opposing counsel, but are organized to administer the law with fairness and impartiality.

Appellant also assigns as error the refusal of the court to permit the defendant to explain why he had been convicted of another crime, which conviction he had admitted while testifying as a witness in his own behalf. While Wigmore on Evidence suggests that the law should permit a witness so assailed to give his explanation of his former conviction, we are of the opinion that this would open up a wide field upon a collateral issue, and place upon the jury the burden of retrying an issue already adjudicated by a court of competent jurisdiction, and wonld tend to direct the attention of the juryfrom the real issue they were impaneled to try. The right to ask a witness whether he has been convicted is statutory in this state, and when the witness answers in the affirmative this ends -the line of inquiry.

It is insisted that the appellant should have been granted a new trial because of newly discovered evidence. One of the lines of attack employed by defendant was to show that the boy witness had made numerous statements out of court in conflict with his evidence given in court. This witness stated to the jury that he burned the barns at the instigation .of defendant for a money reward to be paid by defendant. While the boy was confined in jail charged with arson, he wrote letters to one of defendant’s counsel asserting his. entire innocence and knowledge of the arson. When confronted with these letters, he admitted writing them, but said he did so npon the advice of another person who was con-' fined in the jail, and that this party dictated the letters. This party had been convicted, and was confined in the penitentiary at the time of the trial. Upon the motion for a new trial defendant made an affidavit that he could prove by this person that he did not suggest or dictate the letters, and thus contradict the boy’s explanation of why he had written the letters. The affidavit of this witness was not filed with the motion, and no reason was given why it was not so produced.

We do not rest our opinion on the failure to produce the affidavit, because this proof was cumulative; and, besides, this witness, if he had been present at the trial, would have testified merely that the boy falsified about Ms reasons for writing the letters, which the boy admitted were false. The real question was, had the boy made statements out of court which were contradictory of Ms evidence that he burned the barns at the instigation of defendant? The letters were introduced to impeach the witness’s testimony; but they were not admissible to prove the facts therein stated, and why he wrote these statements, which he testified to be untrue, was collateral to the main purpose of the inquiry. This was shown by several witnesses, and the boy admitted that he wrote the letters contradicting his evidence. We do not think the court erred in refusing to grant a new trial, in order to secure a witness who would only say that the state’s witness testified falsely in giving his reasons for writing the letters which contradicted his evidence. Indeed, we think the court would have been guilty of an improvident use of judicial discretion if he had set aside the verdict of the jury for this reason alone.

We have omitted nothing of value to an understanding of the court’s action in affirming this case, in response to the somewhat strenuous second suggestion of error. In conclusion, we may say that a careful reading of the record, coupled with a painstaking analysis of the arguments, leaves no doubt in our minds that we have reached the proper conclusion in this case.

Affirmed.