42 So. 798 | Miss. | 1906
delivered the opinion of the court.
James Starling and Charles Starling were jointly indicted and jointly tried. James was put on the stand as a witness “for the defense;” that is, for both. It was manifest error to permit him to be asked whether he was “ever charged in any county of committing any offense before.” This question was objected to, the objection overruled, and exception taken; and it elicited an affirmative answer, that he had been twice charged — once with fighting, and once with unlawfully selling intoxicating liquors— but had not been convicted. 2 Wigmore on Evidence, sec. 982, cl. 3 (bottom of page 410). The statute under which this trial was had (Ann. Code 1892, § 1746, same as Code 1906, § 1923) narrows the rule of exclusion to the extent of allowing examination only as to convictions. As an appellate court we cannot say what effect was had upon the jury by this incompetent testimony elicited from an exculpatory witness.
Reversed and remanded.
