McClelland v. State

Anderson, J., delivered the opinion of the court. The appellant, McClelland, was convicted or robbery, and appeals to this court. [738] On the trial, Louis Dunn and his wife testified on behalf of the appellant. On their cross-examination the state, over the objection of appellant’s attorney, was permitted to prove that the husband, Louis Dunn, had been jointly charged with appellant, before the committing court, with the crime for which appellant was being tried. They further testified that he was discharged by the justice of the peace. This action of the court, on the authority of Starling v. State, 89 Miss. 328, 42 South. 798, is assigned as error. In that case Starling, while testifying in his own behalf, on cross-examination, was required by the court to answer the question whether he had ever been charged in a court with any offense, to which he responded that he had 'been charged with “fighting” and the unlawful sale of intoxicating liquors, but was acquitted. It was held that where a defendant in a criminal case is a witness in his own behalf, it is error for the trial court to compel him to testify on cross-examination touching charges of crime previously made against him, of which he was acquitted; that such testimony is not within section 1746, Code 1892 (section 1923, Code 1906), providing that any witness may be compelled to testify touching his conviction of any crime. That case is not decisive of the question here. Section 1923, Code 1906 (which is a rescript of section 1746, Code 1892), provides: “Any witness may be examined touching his interest in the cause, or his conviction of any crime, and his answers may be contradicted, and his interest, or his conviction of a crime, established by other evidence, ’ ’ etc. Witnesses Dunn and his wife were not asked whether the former had been charged with any crime, but whether he had been charged jointly with the appellant with the specific crime for which the latter was being tried. The evident purpose of the inquiry was to show the interest of these witnesses in the result of the trial — their credibility. To illustrate: Even though discharged by the [739] justice of the peace, Dunn may have feared further prosecution, if the appellant was convicted, and so he and his wife may have been deeply interested in securing his acquittal. On the other hánd, the facts may have been such that they desired his conviction, believing that result would end the matter so far as concerned the husband; or the facts may have been such that, notwithstanding the former charge against the husband, they had noi interest whatever in the result of the trial. The weight to be given such testimony is for the jury. It may have much, little, or none, according to the evidence of each case. By the express language of the statute a witness “may be examined touching his interest in the cause.” This clause of the statute is merely declaratory of the common law. It is a broad field of inquiry. The testimony in controversy clearly comes within the statute. Whether it was competent to make this proof by any other testimony than the admission of the witness, except by the record of the committing court, is not presented. Only the relevancy of Mrs. Dunn’s testimony is argued, and not its competency. But, conceding its incompetency, it was without harm to appellant, because the fact was not questioned; proof of it having been properly made by the husband. Affirmed.