Ridgell v. State

DOWDELL, J. We think, from the record here, that it was sufficiently shown on the trial, in the selection of the jury, that the name of the juror in the typewritten copy served on the defendant, and numbered 38, was S. H. Tew, corresponding with that number and name on the slip drawn from, the hat, and the court committed no error in overruling the motion to quash the venire. It plainly appears in the record before us that the copyist, in making a list of the jurors, had in the first in [13] stance written the wrong name, and then corrected the mistake by crossing out this wrong name and inserting the right name — S. H. Tew. The court permitted the state to show threats by the defendant against the deceased before proof of the corpus delicti. This was irregular, but the subsequent introduction of evidence of the killing of the deceased by the defendant cured the error, if it could be termed such. One Hartley was introduced and examined as a witness on behalf of the defendant. On his cross-examination by the state the solicitor asked the witness the following question: “Did you not, at the time when the preliminary trial in this case was to be had, in the town of Geneva, in the presence of J.. D. Jenkins and others, state on the night of the cutting, just after separating deceased and defendant, that you had McGehee with you, and that just after McGehee was cut, and before McGehee got to the house, that defendant Ridgell ran up to you and McGehee, and said, ‘Damn him, if he ain’t dead, let me kill him?” This question was objected to on the ground, among others, that “the testimony sought was illegal.” The court overruled the objection and required the witness to answer, to Avhich ruling the defendant- excepted. The witness ansAvered that he did not make the statement. After the defendant had closed his evidence in the case, and rested, the .state, in rebuttal, introduced J. D. Jenkins as a Aujtness, and against the objections of the defendant the court permitted the solicitor to prove by this Avitness that the Avitness Hartley made the statement as laid in the question on his cross-examination. The witness Hartley did not testify, either on his direct or cross-examination, that the defendant did or did not do and say the thing mentioned in the question of the solicitor to this witness that was objected to, viz., [14] that the defendant ran up to witness, and the deceased, and said, “Damn him, if he ain’t dead, let me kill him,” nor was the witness Hartley asked, either on his direct or cross-examination, whether the defendant did or said any such thing. The witness not having testified as to any such conduct or threat by the defendant, the question to the witness as a predicate for impeachment was improper. It could not serve to show a statement made by the witness out of court contradictory of any statement testified to by him. As primary evidence it was illegal, for any such statement made by the witness, not in the presence of the defendant, was as to the defendant hearsay. So,the effect of permitting Jenkins to testify that Hartley made such statement was to put before the jury purely hearsay evidence calculated to prejudice the defendant’s cause. It is only upon the theory of impeachment that such statements made by a witness can be shown in evidence. If Hartley had been asked if the defendant did and said what was stated in the question put to him, and had answered in the negative, then the question asked by the solicitor as to the statement made by Hartley in the presence of Jenkins would have been proper in the laying of a predicate for impeachment, and if Hartley had denied making the statement, then the evidence of Jenkins contradicting him would have been legal and proper for the purpose of impeaching the witness, and only for this purpose: We think the trial court erred in its rulings in this respect, and that it was prejudicial to the rights of the defendant. Several charges were refused to the defendant. The only one insisted on as error is that numbered 14%. This charge pretermitted the question of entering willingly into the fight, and there was evidence tending to show that the combat was mutual. For the reason stat [15] ed, if for no other, the charge was properly refused. The other refused charges we have examined, and find that the court committed no error in their refusal. For the error indicated above in the ruling of the court on the evidence, the judgment- must be reversed, and the cause remanded. Reversed and remanded. Tyson, C. J., and Andeeson and McClellan, JJ., concur.