Opinion
No. 40755.
January 13, 1958.
1. Criminal law — evidence — witness examined touching interest or conviction.
In robbery prosecution against daughter who asserted that she grabbed her mother's metal box and fled with it to prevent her mother from getting pistol out of the box, testimony that on several different occasions the mother had shot at different members of defendant's family was admissible as tending to show bias and prejudice of mother, who was the prosecuting witness, even though such testimony was not part of the res gestae. Sec. 1693, Code 1942.
2. Criminal law — defendant entitled to show other convictions of prosecuting witness in Justice of Peace Court by testimony of Deputy Circuit Clerk, in view of statute making Circuit Clerk's office custodian of docket kept by former Justice of the Peace.
In such case, where prosecuting witness denied that she had ever been convicted of anything other than driving without a license and permitting gambling on her premises, defendant was entitled to show other convictions of prosecuting witness in Justice of the Peace Court by testimony of Deputy Circuit Clerk, in view of statute making the Circuit Clerk's office custodian of docket kept by a former Justice of the Peace. Sec. 1843, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Forrest County; FRANCIS T. ZACHARY, Judge.
Carl E. Berry, Jr., Hattiesburg, for appellant.
I. The Lower Court erred in denying the appellant the right to show the interest, bias, prejudice and ill will of the witness against her. Bateman v. State, 64 Miss. 233, 1 So. 172; Cody v. State, 167 Miss. 150, 148 So. 627; Dorroh v. State, 229 Miss. 315, 90 So.2d 653; Gibson v. State (Miss.), 16 So. 298; Gunter v. State, 198 Miss. 31, 21 So.2d 486; Hardy v. State, 143 Miss. 352, 108 So. 727; McMasters v. State, 81 Miss. 374, 53 So. 2; Magness v. State, 106 Miss. 195, 63 So. 352; Mississippi Ice Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164; Prewitt v. State, 156 Miss. 731, 126 So. 824; Rouse v. State, 107 Miss. 472, 65 So. 501; Upchurch v. State, 96 Miss. 586, 51 So. 810; Sec. 1693, Code 1942; 58 Am. Jur., Witnesses, Sec. 715.
II. The appellant was denied the substantial right to qualify and introduce into evidence the docket entries of the official Justice of the Peace docket of District Number Three, Forrest County, Mississippi for the purpose of impeaching the State's witness. Breland v. State, 221 Miss. 371, 73 So.2d 267.
III. The Lower Court erred in allowing the State's witness, Mrs. Eva Kelly, to be examined over the objections of the defendant, with reference to an affidavit against the appellant and in allowing said affidavit to be admitted into evidence. Anderson v. State, 171 Miss. 41, 156 So. 645; Byrd v. State, 154 Miss. 742, 123 So. 867; Harrison v. Gatewood, 211 Miss. 121, 51 So.2d 59; Johnson v. State, 80 Miss. 798, 32 So. 49; Lowry v. State, 202 Miss. 411, 32 So.2d 197; Martino v. State, 98 Miss. 355, 53 So. 777; State v. Jackson, 106 La. 413, 31 So. 52.
IV. The proof introduced by the State of Mississippi versus the appellant wholly fails to show that the appellant was guilty of the offense of robbery. Jackson v. State, 211 Miss. 824, 52 So.2d 914; McCray v. State, 153 Miss. 587, 121 So. 291; Smith v. State, 214 Miss. 453, 59 So.2d 74; Young v. State, 214 Miss. 556 18 So.2d 457.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The Lower Court did not err in deying the appellant the right to show prior difficulty between the prosecutrix, the defendant and her son, Bobby. Holden v. State, 226 Miss. 726, 85 So.2d 208; Wood v. State, 64 Miss. 761, 2 So. 247; 58 Am. Jur., Witnesses, Secs. 715, 716.
II. The appellant was denied no substantial right as a result of the Court sustaining the objection to introduction of a Justice of the Peace docket.
III. The Lower Court did not err in allowing the State's witness, Mrs. Eva Kelly, to be examined over the objections of the defendant, with reference to an affidavit against the appellant and in allowing said affidavit to be admitted into evidence.
IV. The State's proof supports the verdict of the jury. Cittadino v. State, 199 Miss. 235, 24 So.2d 93.
The appellant was convicted of the crime of robbery and sentenced to two years in the state penitentiary, from which she appeals.
(Hn 1) The place alleged to have been robbed is a night club known as the Idle Hour, located near Hattiesburg and owned and operated by appellant's mother, Mrs. Eva Kelly. It appears that appellant had been living in Detroit, Michigan, and had just returned to Hattiesburg and had left some of her clothes at the night club. Later she returned to the night club in the morning part of the day for the purpose of getting her clothes. Her daughter 16 years of age was with her, and they were propositioned to go to work in the night club entertaining the men guests, which they refused to do, and appellant left without getting her clothes. Late in the afternoon of the same day appellant returned to try to get her clothes and an argument ensued between appellant and her mother. It appeared that the mother had a metal box containing a pistol and some money and the mother threatened to kill the appellant and started to the metal box for the purpose of getting the gun out of it. The key to the box was hanging to the mother's clothes and appellant jerked the key off. Thereupon the mother procured a piece of iron pipe and started beating on the box to open it. When she had about gotten the box open appellant grabbed the box and fled with it. According to her testimony she took the box to prevent her mother from getting the pistol out of it.
The appellant undertook to show by cross-examination of the mother as well as by other witnesses that on several different occasions the mother had shot at different members of the appellant's family, but on objection by the District Attorney the court would not permit any of this evidence to go to the jury. We think that this evidence should have been permitted to go to the jury as tending to the show the bias and prejudice of the prosecuting witness, and that, even though it was not a part of the res gestae, the lower court erred in not permitting it to be admitted. Section 1693, Code of 1942, and annotations thereunder.
(Hn 2) During the course of the trial the prosecuting witness was asked whether she had ever been convicted of any offense. To begin with she stoutly denied ever having been convicted of anything. Later in her testimony she admitted that she had been convicted of driving without a driver's license, and later admitted that she had been convicted of permitting gambling on the premises occupied by her. She stoutly denied other convictions. The deputy circuit clerk was introduced and testified that her office is the custodian of the docket of a man who was formerly a justice of the peace, but over objection of the District Attorney she was not permitted to introduce the docket or to testify what it showed with reference to certain convictions of the prosecuting witness. Section 1843, Code of 1942, makes the circuit clerk's office the custodian of a justice of the peace docket kept by a man who has held that office and has gone out of office, and we think that the appellant was entitled to show by the deputy clerk the convictions of the prosecuting witness, but over objection of the District Attorney, the court excluded all of this.
From what we have said it follows that the judgment of the lower court should be reversed and the cause remanded.
Reversed and remanded.
All Justices concur except Holmes and Gillespie, JJ., who took no part.