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90 Miss. 111

Smith v. State

Mississippi Supreme Court

Decided March 15, 1907

Mississippi Supreme Court · decided 1907-03-15

From the circuit court of, first district, Chickasaw county. Hon. Eugene O. Sykes, Judge. Smith, the appellant, was indicted for murder, tried and convicted of manslaughter, sentenced to the penitentiary for a term and appealed — his first appeal — to the supreme court. The judgment of conviction was reversed and the case remanded for a new trial. The first supreme court decision in the case is reported. Smith v. State, 87 Miss., 627, s.c., 40 South., 229.

Key passage — most relied on by later courts

““The defendant was the only witness to the fact in his own behalf, and the charge would have been no stronger if it had called his name and cautioned the jury, in its own language, to ‘take into consideration the interest such witness may have in the result of the trial.’ His testimony should not be so hampered by such express reference.””

quoted by 1 later decision, including State v. King

Good law ✅— No negative treatment on recordhow we know

Decided 1907-03-15

How this case has been cited

Cited by 10 later decisions (1 by the Supreme Court) — most recently March 1977

9 state decisions

4019071910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Cali-ioon, J.,

¶1delivered the opinion of the court.

¶2On the application for continuance the state agreed that the defense might read what the affidavit for it set forth would be sworn to by the absent witness, to have the same effect as if he had been present and had -so testified. Notwithstanding this, the state was permitted in rebuttal, in a very close case as this is, to show by the stenographer that on the previous trial that witness had not been introduced by the defense. We think this error. It could have'had no sort of bearing on the credibility of the absent witness, but was a direct assault on defendant’s affidavit for the continuance; and this was not a trial for perjury in making that affidavit (Scott v. State, 80 Miss., 197, 31 South., 710), and was an overload on the accused.

¶3We think it was -error to give the state’s second instruction. The defendant was the only witness to the fact in his own behalf, and the charge would have been no stronger if it had called his name and cautioned the jury, in its own language, to , “take into consideration the interest such witness may have in the result of the trial.” His testimony should not be so hampered by such express reference. See annotations to § 1918, Code 1906.

¶4It was improper to allow the state to show, on the cross-examination of the.witness Aired, that he claimed a reward for *116arresting accused. It had no bearing on what he had testified to, and could only tend to hamper the defense.

¶5The question to defendant, as a witness, whether he had ever testified, was improper, and equivalent to a comment to the jury on his nonappearanee as a witness on the previous trial of the case. By all our adjudications this is sacred ground. Yarbrough v. State, 70 Miss., 594, 12 South., 551; Sanders v. State, 73 Miss., 444, 18 South., 541; Reddick v. State, 72 Miss., 1008, 16 South., 490. Bulings must be examined by the light of the evidence as a whole.

¶6Reversed and remanded.

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