Stewart v. State, 64 Miss. 626

Stewart v. State

64 Miss. 626 | Miss. | 1887

ARNOLD, J.,

delivered the opinion of the court.

Whether persons jointly indicted for a misdemeanor shall be tried jointly or separately, is a matter in the discretion of the court. *630Code, § 3069. The record shows no abuse of discretion in refusing to grant the application for * severance in this case. We consider the case in the light of the testimony that was permitted to remain before the jury, and doing this, and leaving the evidence of illicit intercourse between the parties after the indictment was found, which appellants complain was improperly admitted and afterward’ excluded by the court from the consideration of the jury, entirely out of view, the verdict cannot be condemned as being clearly or manifestly wrong. There is still enough criminating evidence left to place the verdict on settled principles beyond the control of this court.

But we are of opinion that the excluded testimony was competent and should not have been ruled out. Evidence tending to prove' improper familiarity and criminal intimacy between the parties at a period within the statute of limitations had been produced, and testimony of similar acts and conduct between the parties, both prior and subsequent to the finding of the indictment, was admissible to illustrate or characterize the relations and conduct of the-parties shown to have existed or to have occurred within the time' covered by the indictment. Bishop says that this is the law on the subject, and so say the Supreme Courts of Alabama, Massachusetts, Nebraska, Tennessee, and Vermont. Bishop on Stat. Or., §§ 680-684; Alsabrooks v. The State, 52 Ala. 24; Thayer v. Thayer, 101 Mass. 111; The State v. Way, 5 Neb. 283 ; Cole v. The State, 62 Tenn. (Baxter) 239; State v. Bridgman, 49 Vt. 202.

Acts and conduct before and after indictment found might be too remote in point of time to afford any reasonable inference of' guilt as to the offense charged, and when so, proof thereo f should be rejected, but we do not think they were such in this case.

There is nothing in the argument of the district attorney to the jury of which appellants can justly complain. The impropriety of his alluding to testimony which had been excluded from the jury by the court was corrected both by the action of the court and the district attorney himself. We do not perceive that his appeal to the jury in regard to miscegenation or his denunciation of the same was improper or unjust to appellants." Affirmed.