Turner v. State

Criminal Law and Procedure. Intoxicating liquors. Unlawful sales. Credibility of witnesses. Instruction. In. a prosecution for the unlawful sale of intoxicating liquors where the witnesses called by the state were detectives employed by the state to ferret out such sales, although for a fixed compensation, there being no evidence of other interest, a defendant’s instruction should have been given on request announcing that the weight of evidence and the credibility of the witnesses were for the determination of the jury, that they should consider the interest, if any, the witnesses may have had in the case, and if they believed any witness had wilfully sworn falsely to any material matter they might disbelieve the whole of his testimony.

From the circuit court of Holmes county. Hon. Sydney Smtth, Judge. Turner, appellant, was indicted and tried for unlawfully selling intoxicating liquors, was convicted and sentenced to a fine and imprisonment in the county jail, and appealed to the supreme court. The only witnesses for the state were two detectives employed by the executive department of the state at a fixed compensation to ascertain where and by whom such liquors were illegally sold; and to testify as witnesses in prosecutions against parties who might be prosecuted for such sales. It was not shown in evidence that the witnesses had any direct interest in the conviction or acquittal of the appellant, or that their compensation in any way depended upon conviction. They were subjected to a severe cross-examination by the defense; and there was much testimony offered through witnesses for appellant in direct conflict with the testimony of the state’s witnesses. The case was a close one on its facts, and, in the supreme court, the principal assignment of error relied on for reversal was the refusal by the court below to grant the fourth instruction asked by appellant, set out in the opinion of the court. The fourth instruction asked by appellant should have been granted because of the great conflict between the testimony of-the witnesses on the part of the state and of those for the defense; and the jury had a right to know what was its province in such case. The court refused to give the jury any instruction as to what was expected and required of it in such cases. In view of the character of the witnesses, and the class in which these witnesses are placed by the law, the appellant was entitled to the fourth instruction, and the refusal by the court to grant the same worked irreparable injury to the appellant. See Vails v. State, 94 Miss. 365, 48 South. 125, in which an instruction similar to that here in question, and there given on behalf of the state, in that case was attacked by the defendant. This' court there said “there was not only no reversible error, but no error at all, in giving the fourth instruction for the state.” Now in this case the instructions refused to defendant, were drawn along the line of the instruction cited and instruction number four in this case, is identical with instruction number four in tiie Vails case, which this court there said was correct. The most serious question presented by this appeal is the action of the court below in refusing defendant’s fourth instruction. This instruction is in almost the exact language as the fourth instruction in the case of Vails v. Staite, 94 Miss. 365, 48 South. 125, which was approved by this court. The point made against the instruction in that case was that it pointed to the defendant. The objection against the fourth instruction in this present case, if any objection is to be. made, is that it intimates to the jury that the testimony of the interested witnesses is false. If the instruction had advised the jury that it was the province of the juay, in weighing the evidence, to consider the interest of the witness, and in view of the situation and other circumstances involved, to give it such weight as it is fairly entitled to, then it would have been in exact accord with Code 1900, §§ 1915 and 1923; but as it is, it is coupled with wilful and corrupt swearing, and it really intimates to the jury that interested witnesses are guilty of false swearing.