79 Miss. 555 | Miss. | 1901
delivered the opinion of the court.
The conviction of the defendant is sought to be supported, if it may be so supported, by evidence of the burning of the storehouse occupied by the defendant by such apparent means — the profuse use of oil — as being a way which George Smith testified the defendant proposed to him to burn said building. And to give cogency to this presumption that the defendant caused the house to be burned, because the means that he proposed Smith should use in its burning were apparently used by the incendiary, or to fortify the testimony of Smith upon which the alleged presumption rested, certain hearsay evidence, in repeated instances and by divers persons, was offered by the state’s counsel, and admitted by the court over the objection of the defendant. As an illustration of the character of the evidence thus admitted to the jury, George Smith, who swore that the defendant offered to hire him to burn the storehouse, testified, also, that he told Cottrell and several other persons of such proposed burning, and thus placed before the jury his antecedent declarations of his testimony then given; and Cottrell and said other persons were introduced, and testified, in corroboration of Smith, that they had severally seen Smith at the places and times denoted by him in his evidence, and that Smith told them that he was planning to catch defendant in the burning of his storehouse; and these repetitions of his story, given in evidence, made to various persons, were presented to the jury
1. It is a principle of the common law that previous declarations of a witness in conformity with his testimony before the court cannot be given in evidence at all affirmatively; and while a witness may be impeached by showing that he has made declarations contradictory to his evidence before the court, yet evidence that he has on other occasions made statements similar to what he has testified in the cause, is not admissible, except under certain circumstances not existing in this case. 1 Greenl. Ev., sec. 469; Whart. Cr. Ev., sec. 492; Com. v. Jenkins, 10 Gray, 485; Robb v. Hackley, 23 Wend., 50; People v. Mead, 50 Mich., 228; 15 N. W., 95; Nichols v. Stewart, 20 Ala., 358. If Smith’s evidence given under sanction of his oath before the jury be of doubtful credit, his unsworn statement must be.of less credit, and by adding his unsworn statement to his sworn evidence, the latter cannot be increased in value. . Eor, if so, the often-repeated declarations of a discredited witness in harmony with his evidence before the jury would render the latter superior to the evidence of a witness of unimpeachable integrity; and such effect could not arise by the mere trick of an unscrupulous witness. We .think the matter above indicated should have been excluded from the consideration of the jury.
2. Another species of evidence admitted to the prejudice of the defendant were certain suspicions indulged against him, and laid with great particularity before the jury. As an instance, take.the testimony of Kelly, from which it is plainly deducible that he suspected Williams would burn his storehouse, which was near that of the witness, who was induced to watch the storehouse of defendant for several nights in anticipation of its
Reversed and remanded.
