Gables v. State

Anderson, J., delivered the opinion of the court. The appellant was convicted of the crime of malicious mischief, and appeals to this court. The only eyewitness to the alleged crime, who testified for the state, was one Hollis, who stated that he was in the cemetery about one hundred and fifty yards from New Liberty Church, when he saw the appellant, who was accompanied by the state’s witness, his cousin, Tom Lee Neal, break out the windows of the church with a stick; Neal protesting against his doing it. The appellant and Neal both denied that appellant broke out the windows of the church. On cross-examination, the state’s witness Hollis testified as follows: “Q. Now, you know Gay Hawkins, don’t you? A.' Yes, sir. Q. You and Gay were over at Mt. Hermon Church on Sunday after this happened — together over there? A. Yes, sir. Q. On that day, down at the spring, when you and Gay Hawkins were present, when just you and Gay Hawkins were present down at the spring, didn’t you say to Gay down there, in discussing this matter, that somebody said you knew who did it, and whoever said that was a liar — that you didn’t know anything about it? Didn’t you say that to Gay? A. No, sir; I told him I didn’t know anything about it.” On redirect examination by the district attorney, he testified: “Q. Why did you tell [222] that ? A. I wasn’t under any obligation to tell him anything about it. ’ ’ Appellant offered to prove by Gay Hawkins, in rebuttal, the truth of the predicate thus laid for the impeachment of the state’s witness Hollis, which the court refused to permit, on the ground that Hollis admitted substantially what was sought to be proven to impeach him. The record, however, does not bear out this theory. Hollis admitted that he told Hawkins he did not know anything about the appellant breaking out the windows of the church, but denied that he told him some one had said that he (Hollis) knew who did it, but that he knew nothing about it, and whoever said he did was a liar. Had Hawkins been permitted to testify as to the truth of the entire predicate as laid — that part admitted by the witness, as well as that denied — it might have had a material bearing with the jury as to Hollis’ credibility. It was error for the court not to permit this to be done. The giving of the following instruction for the state is assigned as'error, viz.: “The court charges the jury, for the state, that they are the sole judges of the evidence in this case, and the jury may believe one witness, and disbelieve any other witness, on the ground of relationship of'the witness to the defendant, or for any other reason satisfactory to the jury.” This instruction is clearly erroneous. By it the jury were authorized, regardless of the evidence of his credibility, to refuse to believe any witness, on-the ground alone of his relationship to the appellant. And they were informed, further, by this instruction, that they could disbelieve any witness “for any other reason satisfactory to the jury.” As said by the court in Riley v. State, 75 Miss. 352, 22 South. 890: ‘ ‘ This is not the law, never has been, and, it is to be hoped, never will be.” McEwen v. State, 16 South. 242; Riley v. State, 75 Miss. 352, 22 South. 890; Jeffries v. State, 77 Miss. 757, 28 South. 948. Reversed and remanded.