Booze v. Yazoo City

Criminal Law and Procedure. Evidence. Facts calculated to discredit state witness’s statements. Testimony calculated to cause the jury to doubt the truth of material statements made by a witness for the state in a criminal case should not be rejected; the question as to whether it be purely speculative is for the jury.

Prom the circuit court of Yazoo county. ■IIon. Wiley H. Potter, Judge. Booze, appellant, tried and convicted before the mayor of Yazoo City, on the charge of unlawfully selling intoxicating liquors within the municipality, appealed to the circuit court; ■ was tried there de novo, convicted, fined $250, sentenced to imprisonment in the county jail for thirty days, and appealed to the supreme court. The opinion of the court states the facts. The court erred in not granting appellant’s request for a new venire and also erred in refusing to allow the evidence of different witnesses sought to be introduced by appellant. The-court also erred in permitting counsel for Yazoo City, the prosecutor in this case, in his closing argument before the jury to-read an article from a newspaper, over appellant’s objection. The evidence showed that a detective gave to one Kennedy,, money with which to buy whiskey and that Kennedy brought to the detective a pint of whiskey, stating that he had bought it from Booze, the appellant; and the detective testified as to-this, his testimony being the only direct evidence of the sale. Appellant denied having sold the .whiskey to Kennedy, and sought to prove by Howard, the agent of the American Express Company, that on the date of the alleged sale Kennedy himself had received a gallon of whiskey from the express office. Appellant also offered to prove that Kennedy on that date-had told different parties about having whiskey and that he, Kennedy, could let such parties have some of it, and that Kennedy actually did let different persons have whiskey. The action of the court in refusing to admit such evidence in regard to-Kennedy constituted reversible error. It had already been shown in evidence that the premises of appellant had been searched by the city police, and no whiskey had been found. It was materially important to appellant to show, not only that he-himself had no whiskey, hut that Kennedy, who practically was the accuser in the case, did have on the very day in question plenty of whiskey. There could legally be no question as to-the competency of such testimony. 1 Wigmore on Evidence,. §§ 139, 144. Inasmuch as the detective, Kennedy, was the. only witness-who testified that appellant sold the whiskey, any testimony tending to show that the testimony of Kennedy was untrue, or which would raise in the minds of the jury, reasonable doubts-of its truth, should have been admitted. On the facts this was a very close case, and there is grave doubt as to the guilt of appellant, and he should have been given every opportunity to present his defenses fully before the jury. In regard to the contention of learned counsel for appellant that appellant should have been granted a new venire under the circumstances, the record shows that there was actually no reason for a new venire. As regards the objection that counsel for appellee, in argument before the jury, read a statement from a newspaper, the facts are that neither the jury nor anyone else in the eourt room, except counsel for appellee, knew the source of the quotation. The author of the article was not stated nor was the name of the newspaper given. Furthermore, counsel, in reading the quotation, did not hold the newspaper in his hand, but merely a small paper clipping, and had only read a part of it when his time limit before the jury expired and he was stopped by the court. The only ruling on the testimony adverse to appellant, Booze, was with regard to the possession by the witness Kennedy of a gallon of whiskey on the date of the sale, but the record distinctly shows that the whiskey in the possession of Kennedy was of a different kind from that which was bought from Booze. This evidence was properly excluded by the court for the reason that Kennedy was not on trial, and the possession by Kennedy of other .whiskey than what he bought from Booze would not tend to prove or disprove the mean question, at issue. It is contended hy appellant that the court below should have permitted him to prove that Kennedy had been selling whiskey and that on the day of appellant’s alleged sale Kennedy received a gallon of whiskey from the office of the local express •company. The exact questions along this line are: Q. “Kennedy, have not you been selling whiskey ?” No answer and objection to the question sustained. Q. “Kennedy, on that very day, October 17th, did not you go to the express office and get a gallon of whiskey for yourself ?” No answer and objection to the question sustained. Kennedy was next asked if he had ever been convicted or fined for selling whiskey and to this he was permitted to answer. He was next asked if he had ever been arrested on the charge of selling intoxicating liquors and this question was objected to and objection sustained. It will be seen that the appellant was allowed to attack the credibility of Kennedy as a witness, under Code 1906, § 1923, but was not permitted to show that Kennedy had been accused of a crime, or that he had whiskey in his possession. It certainly would have thrown no light upon the question at issue to have proved that Kennedy had been accused of selling • whiskey, and it was not.permissible to impeach him in that way.