WARE v. STATE, Miss., Judgment, Law, casemine.com

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Attorney(S)

Harry K. Murray, for appellant. It is submitted that the defendant herein did not receive a fair, impartial and legal trial; that the burden of carrying an issue of compromise of which defendant had no knowledge was imposed upon him to his detriment; that the defendant presented every fact of his life and conduct to the jury; and there can be but one conclusion as to the jury's verdict — that it was the result of false issues injected or prejudice. The record in this case upon the facts presents a most doubtful happening. The defendant is charged with attempting to rape a sixteen year old girl on the front porch of her home on Johnson Street, in the City of Vicksburg, Mississippi, a thickly populated section of the City; and this with her mother and another woman in house with the front door open — in the daytime, about 2:30 o'clock in the afternoon of November 10, 1947. Two witnesses, Mary Handy and Bennie Handy, testified to what they say happened on the front porch of the Green home; there was no testimony from Clara Green or Maud Preston, who were in the Green home at the time that the Handys say Ware assaulted the girl, that anything at all occurred; there was no complaint or indication from the girl to her mother and Maud Preston that anything had happened. When Steve Jackson, witness for defendant, was introduced as a witness to the good character of the defendant, the District Attorney asked the witness if he did not offer the Greens $25.00 to dismiss the case; this was denied by the witness. But it was insisted upon by the State, over the objection of defendant, and a new issue injected into the case as to whether Steve Jackson had attempted to compound a felony by getting the Greens to dismiss the case for $25.00. Not only this, but the State called Clara Green as a witness in rebuttal to discredit the testimony of Steve Jackson and try the case on another issue — the question of attempted bribery — and this although the defendant knew nothing about such a proposition, if made, or anything about it; he was in jail at the time. All of this was objected to by counsel for the defendant, as shown by the record, but the objections were overruled by the Court. It is elementary that a witness cannot be impeached upon collateral matter and it is equally elementary that statements of parties seeking compromise are not admissible in evidence. Jones v. State, 177 So. 37. The conviction was had in this case through the testimony of witnesses hostile toward defendant, and whose testimony was discredited both as to the facts and credibility; that the defendant was shown by the unimpeached testimony in record to have been a law-abiding hard-working and respectable negro. That the weight of the evidence is with the defendant in this case; that the action of the Circuit Court in allowing the issue of attempted bribery to be injected into the case, over the continued objection of defendant, was contrary to law and highly prejudicial to defendant, and constitutes reversible error in this cause. George H. Ethridge, Assistant Attorney General, for appellee. In the course of the argument in the appellant's brief he argues that the court erred in permitting Clara Green to testify as to the statement made to her about the offer of the twenty-five dollars to dispose of the trial on the ground that this was contradicting the defendant about an immaterial matter. It was material testimony to show the interest of the witness in the result of the trial and a given fact is relevant to the case if it is relevant to another material fact in the case. It is useless to discuss the sufficiency of the evidence to sustain the charge. Not only were there two witnesses who testified to seeing the attempt, although the attempt appeared to be more or less public and such crimes are not usually committed in view of other people, but all of the circumstances corroborate these two witnesses who testified to seeing the act done and one of the witnesses for the State was attracted by the yelling of the witness who saw it. This witness stepped to where she could see the appellant, although she did not see the act. The presence of the girl at the place where the alleged attempt was made is admitted by the defendant. The two Handys did not need any corroboration because if what they testified to is true it would not matter whether the parties to the act were in a position to be seen. The jury were practicable, sensible men and were competent judges of the truth of the witnesses testifying in the case and where there is sufficient evidence to draw a conclusion of guilt, they are the ones to draw the conclusion.

Judges

Griffith, C.J.

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WARE v. STATE.

1. Criminal law — offer to pay money to procure withdrawal of prosecution — not admissible, unless.

An offer to pay money to procure the withdrawal of a criminal prosecution is not admissible unless made by the accused himself or by some one actually authorized by him to make it.

2. Criminal law — hearsay testimony — offer to pay money to procure withdrawal of prosecution.

A witness for the prosecution testified that another witness, not the accused, had stated to her that after talking to the accused in jail, he, the witness, would give Twenty-five dollars to have the prosecution withdrawn, but there was no proof that the accused himself had made the offer or had authorized it: Held that the admission of the hearsay testimony was reversible error, when without it there would probably have been no conviction.

Griffith, C.J.

Appellant was indicted and convicted on the charge of attempted rape. The version given by the two State's witnesses, who claimed to be eyewitnesses, borders so nearly upon the incredible that it may be declared as highly probable that there would have been no conviction except for the testimony now to be mentioned.

(Hn 2) A character witness was introduced by the appellant, and on cross-examination it was sought to be proved by the State that the witness had offered twenty-five dollars to the father and mother of the alleged victim if they would withdraw the prosecution. The witness flatly denied that he made any such offer. The mother was then put on the stand in rebuttal, who testified that the witness aforementioned did make the offer and that the witness said further that he did so after talking with appellant in the jail, to all of which appellant objected, but was overruled.

It is thus seen that the only testimony that appellant had any connection with the offer, or that an offer was authorized by him, was in the hearsay averment that the character witness had so stated to the mother. (Hn 1) Obviously, an offer of compromise to be admissible must have been made by the accused himself or by someone actually authorized by him to make it. State v. Sutcliffe, 159 La. 305, 105 So. 352; State v. Goode, 185 N.C. 737, 117 S.E. 337; Yoder v. State, 66 Okla. Cr. 178, 90 P.2d 669. It is not contended that the accused himself made the offer, and it is not proved that he authorized it.

Reversed and remanded.

WARE v. STATE

WARE v. STATE.

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