Chism v. State

Citations

• 70 Miss. 742

Syllabus

<p>1. Evidence. Discrediting one’s own witness. Adverse testimony. Surprise.</p> <p>It is only where the testimony of a witness is adverse to the party calling him, and such party shows that he is surprised by his testimony, having had reasonable ground to believe he would testify in his favor, that such party is allowed to discredit the witness by proof of contradictory statements. The rule cannot be invoked if the witness does not testify adversely, but merely denies knowledge of the case. Dunlap v. Eichardson, 63 Miss., 447.</p> <p>2. Same. Murder trial. Witness denying knowledge. Former statements.</p> <p>Accordingly, where a witness called by the state in a murder trial denies all knowledge of the homicide, the prosecution is not justified in attempting to discredit him by an examination, in which it is shown that he had previously made a different statement, and had testified favorably to the state before the grand jury.</p> <p>3. Incompetent Evidence. Admission of. Error not cured.</p> <p>Error in permitting, over objection, such examination, which elicits statements of the witness tending to show his and defendant’s responsibility for the murder, and to negative the defense of an alibi, set up by the accused, is not cured by immediately afterwards excluding such statements at the suggestion of the state, and instructing the jury not to consider them unless it can be positively affirmed that the accused was not prejudiced.</p> <p>4. Same. Admitting incompetent evidence. Error. New trial.</p> <p>When incompetent evidence of great import is deliberately introduced, and it cannot be said with confidence that no other conclusion than that of guilty could have been reached on the legal evidence, the fact that the jury was subsequently instructed to disregard the incompetent testimony, will not cure the error, and for this a new trial will be granted.</p>