Mask v. State

Fisher, J.: This was an indictment returned by the grand jury into the circuit court of Marshall county, charging the defendants below with the murder of one Susan Elizabeth Smith. The first error assigned relates to the defendants’ application for a change of the venue to some other county of the district. The application appears to have conformed to the requisitions of the statute. The court, however, permitted the prosecution to introduce and examine several witnesses, with a view of making a counter showing, and upon hearing their testimony refused the application, to which- action of the court the counsel for the defendants excepted. This point has recently been decided by this court in the case of Weeks v. The State, holding that such testimony could be introduced. But it is said that the court — 968 — erred in refusing to permit the defendants’ counsel to cross-examine the witnesses. It appears by the record that the court refused any cross-examination whatever to be made. The rule on this subject is almost without exception, and is founded in both reason and the clearest principles of justice, that an examination in chief of a witness by a party, carries with it the right to a cross-examination by the adverse party; the object being to elicit the whole truth in regard to the particular subject of investigation before the court. We perceive nothing in the nature of this investigation to authorize in disregarding the rule. The witnesses doubtless intended to express nothing but an honest opinion in regard to the state of public opinion in the county; but this opinion, though potent in their estimation, might have been worth nothing in the sound and discriminating judgment of the court, when tested by the facts and circumstances brought out on a cross-examination. We are therefore of the opinion that the court erred on this point. It is next assigned as error that the court erred in refusing to permit the counsel of the defendants to cross-examine a witness introduced on the part of the state as to matters not immediately connected with the direct examination. The witness stated, that on the day of the killing he saw the defendants in a certain road leading in the direction of the house of the father of the deceased, and that he overheard a certain conversation among the parties in relation to the road. The counsel for the defendants asked the witness on cross-examination if he had examined the wound of which the deceased died, and if so, to state its size and character. Upon objection being made, the court refused to permit the witness to answer this question, but stated to counsel that he could, at the proper time, if he so desired, make the witness his own and examine him as to this matter. The general rule as laid down in all the elementary writers is, that the cross-examination, like the examination in chief, may be co-extensive with the issue, and that it is not confined merely to matters brought out by the direct examination. The object of the testimony was, no doubt, to form a link in the chain of evidence to establish malice or a conspiracy by the defendants; and conceding, for the sake of argument, that it could rise to — 969 — this importance, it still would be but evidence taken by itself of an intention to commit murder, and not of the actual commission of it. Now, suppose the cross-interrogatory had been answered, the size and character of the wound given, and that it had appeared from the nature of the wound that the defendants could not have inflicted it with any weapon which they or either of them had about their persons or within their reach at the time, would not the force of the testimony elicited by the state have been completely destroyed. It is the doing of an unlawful act that gives the state the right to prove an unlawful intent, and hence, if the parties were not guilty of the act itself, to wit, the homicide, or concerned with others who were guilty, though they may have intended to do the act, yet their unexecuted intention, while it may have been highly criminal, could not be treated as murder, or as any other grade of homicide. What, then, would the proof, taken as a whole, establish ? The prosecution might say that we have by our testimony, taken by itself, created a presumption of malice; that is to say, an intention to commit murder. The defendants might reply, if you have,(the same witness proves that we could not have committed the murder. Whatever force, then, there might be in the first presumption, it would be destroyed by the second. The testimony thus goes to the jury as a whole, and the question is, What fact does it tend to establish ? The answer is at once—none. Because the presumption of malice is rebutted by the other presumption that the parties could not have committed the deed. We have treated the cross-interrogatory as having been answered for the purpose of illustrating the principle and of showing that, while it may frequently be convenient to confine a party to the matter embraced in the direct examination, yet it is a rule founded in good and safe policy to allow the cross-examination the same latitude which is allowed to the examination in chief. Circumstances will generally suggest to the judge presiding at the trial when there should be a departure from the rule. It is not deemed necessary to notice the. conflict which is said to exist in the authorities on this subject. The conflict has no doubt arisen from the fact that courts have sometimes — 970 — misunderstood tbe object of a cross-examination, and have treated the testimony thus elicited as the defendant’s evidence instead of treating it as a part of the testimony of the party introducing the witness. When the state introduces a witness on the stand, he is there for the purpose of telling the whole truth of the matter relevant to the issue, and whether what he states is in response to the questions propounded by the prosecution or by the defendants, it is the testimony of the state, and as such must be received, weighed, and considered by the jury. It is not the case of a confession and avoidance, for the reason that murder, when confessed, cannot be avoided except by a plea of acquittal or former conviction. Nor is it the case of a party endeavoring to prove himself innocent, but of the state endeavoring to prove him guilty; and in making this proof, he is only insisting that the witnesses shall state what they are required by their oath to state—the whole truth relevant to the issue then under investigation. In regard to the various other questions involved in the case, we are of opinion that the court committed no error. If we were to go into an examination of each question, we would be compelled to comment to some extent upon facts which ought to be left for the consideration of the jury, untrammelled by any opinion of this or any other court, as it is their province alone to weigh the evidence. For the reasons already stated the judgment will be reversed, and a venire de novo awarded. Smith, C. J., concurred.