Thompson v. State

84 Miss. 758 | Miss. | 1904

Whitfield C. I.,

delivered the opinion of the court.

The court ought not to have permitted the details of the previous difficulty to be shown in evidence, nor the falling out between the accused and his wife and her family, nor the reason of that falling out, nor the conduct of Mrs. McGraw in making two or three trips to Thompson’s home to bring-her daughter away. All this testimony should have been excluded as foreign to the issue which the jury'was trying. It is true that in the cross-examination of Mrs. MeGraw some of this testimony was drawn ont by the counsel for defendant, particularly with respect to the three separations between the husband and wife, and with reference to Mr. McGraw’s reasons for leaving Frank Thompson’s place; and it is further true that the state objected and the court overruled the objection. But there is very much more of the testimony, along all these lines, introduced by the state over the objection of the defendant, and erroneously admitted. We specify particularly here the testimony of Mrs. Barnett, who was permitted to detail at great length the conduct of defendant in riding up and down in front of McGraw’s house, the day before the killing, with a shotgun, daring him out, cursing, and disturbing the entire family; and the testimony of Fannie May MeGraw to the same effect. The necessarily evil effect of admitting this testimony introducing a number of irrelevant issues is plainly seen in the examination and cross-examination of the defendant, which was very lengthy. Counsel for defendant went into all these matters, deeming it essential, since the testimony had been admitted, that defendant should make the best explanation that he could; and the counsel for the state naturally crossed on all these irrelevant issues. One illustration will suffice: The court had, earlier in the trial, excluded the testimony of Bob Dickerson on the objection of the defense, and yet the defendant was allowed to be asked on cross-examination this question: “Didn’t you say to Bob Dickerson, Sally Dickerson, and Neis Paine, on the morning of the killing, that if you met him (meaning MeGraw) you or him one would eat breakfast in hell?” It is true that defendant denied making the statement, and his denial was not contradicted, but no such question should have been asked in view of the fact that the court had correctly excluded the testimony of Dickerson early in the trial, which testimony of Dickerson was about the very conversation when' Neis Paine and Sally Dickerson were present the morning of the killing. If the testimony of Dickerson was incompetent about this very conversation, upon what theory should the district attorney be permitted to ask the defendant about an incompetent conversation already excluded ? We only add this observation, that the testimony of Mrs. 'McGraw and of the defendant are in direct conflict as to what occurred at the time of the killing, and in view of this fact it is not possible' for us to say that these errors are not reversible errors.

Reversed and remanded.