Brown v. State

1. Witnesses. Privilege. Right to claim. Advice of court. Corroboration. Direct examination. Where two parties jointly indicted were tried separately and one, being convicted, was called by the state as a witness, on the trial of the other, it was not error for the court to refuse, on request of the party on trial, to advise the witness that he did not have to testify unless he desired to do so. 2. Witness. Examination. Direct examination. Corroboration. It is error to permit the state to support the credibility of a witness by allowing the witness to state that his testimony was the samé as that given by him in another trial.

Appeal from the circuit court of Leflore county. Hon. F. E. Everett, Judge. Alf Brown was convicted of crime and appeals. The facts are fully stated in the opinion of the court. We say that if this conviction is to be upheld it must be upon the testimony of Wes Brown. By the record it appears that when Wes Brown was introduced, timely objection was made and overruled to his testifying without being cautioned by the court that he might or might not testify on the trial of this case, he being a co-defendant and already having been convicted. This we submit was error. In White v. State, 52 Miss. 216, it was held that the privilege of the witness toward delivering inculpating evidence was personal and that the accused could not object. This case is not against our objection. We object that he was not warned, and in support of our objection cited: “It is the duty of the court to advise witnesses of their right to decline to answer any question by replying to which they might tend to incriminate themselves. ’ ’ Newcomb v. State, 37 Miss. 383; Head v. State, 44 Miss. 731; Ivy v. State, 84 Miss. 264. We particularly direct the attention of the court to the case of Ivy v. State, supra, wherein the opinion of the court deals almost entirely with this question, only about two and one-half lines being” devoted to any other question in the opinion. This court held in the case of Boyd v. State, 84 Miss. 414: “In a prosecution for murder it is error to permit a witness for the state to testify that he had testified to the same facts at the preliminary examination. ’ ’ In the case of Washington v. The State, 93 Miss. 270’, the court held: “The testimony of a witness cannot be corroborated by proof that he testified in the same way on a previous trial of a case in the absence of all showing that he then swore differently.” In the Washington case the witness was corroborated by another. There can be no difference in the rule where he corroborates his own testimony by referring to that given on another trial. To the same effect, we cite Owens v. State, 82 Miss. 18, and Johnson v. State, 80 Miss. 798. We respectfully submit that this case should be reversed and remanded. The court decided in the Wes Brown case recently before the court that the other party could not complain of the court’s action in not permitting or not instructing the witness that he did not have to incriminate himself. It was a matter wholly for the witness to raise the privilege, being a personal privilege which could not be availed of by any other person. The sixth assignment of error complains of the fact that the court permitted the district attorney to prove that the testimony of the witness, Wes Brown, was the same in this trial as it was in the other trial. This action on the part of the district attorney was improper, but it does not, in my judgment, on this record, constitute reversible error. There is no evidence in the record, as I see it, that would warrant the acquittal of the defendant. The entire testimony shows that he was a participant in the killing, and that there was no sufficient reason for the killing. The mere fact that an error is committed is not sufficient to cause a reversal. The court sits for the purpose of seeing that a correct result has been reached. On this record the appellant was properly convicted, and there could be no reversal because of the immaterial error of permitting- Wes Brown, to state that he testified in the present trial to the same effect that he did in his own trial. The court, in all the cases cited, travels upon the idea that to be reversible, the case must be a doubtful case on the evidence. Where the case is close, an error might turn the scale, and in such case it would be essential to a fair trial that the rule be strictly adhered to. In the present case the entire testimony shows that the right result was reached and I submit tha^ there is no error that would make a reversal proper,