Alexander Satterfield, of Jackson, for appellant.
The granting of the instruction submitting the question of manslaughter to the jury was fatal error.
Walker v. State, 123 Miss. 517, 86 So. 337; Adams v. State, 175 Miss. 868, 167 So. 59; Rester v. State, 110 Miss. 689, 70 So. 881; Parker v. State, 102 Miss. 113, 58 So. 978; Calicoat v. State and Strickland v. State, 131 Miss. 169, 95 So. 318.
Mr. S.H. Bagnell was sheriff of Claiborne County and had in attendance upon the court two deputies who were amply able to care for the business of the court. The rule was invoked by both parties and the witnesses excluded from the courtroom. Mr. Bagnell was allowed to remain in the courtroom and to listen to all of the testimony both for the state and for the defendant. He was not offered in chief and after the state had originally rested upon the conclusion of its testimony, the defendant had introduced all of his testimony and had rested, Mr. Bagnell was offered in rebuttal. The defendant objected to his testimony on the ground that the rule was invoked and the witness was in the courtroom during the trial. This objection was overruled. As soon as the purpose of the examination became apparent, the defendant objected to the testimony on the ground that the same was not in rebuttal. This objection was overruled.
The court has repeatedly condemned a deliberate action by the state in which they withheld vital and material testimony and then surprised the defense by introducing the same in rebuttal. If this testimony had been introduced in chief the jury would have had the same in mind in considering all evidence in the case. As it was deliberately withheld until the defendant's witnesses had all testified, it resulted in an unfair and improper order of testimony and gave the state an undue advantage.
Russell v. State, 185 Miss. 464, 189 So. 90; Roney v. State, 167 Miss. 827, 150 So. 774.
While the general rule is that the trial court is granted the discretion to determine whether or not a witness in the courtroom may testify, the cumulative effect of the violation of the above rule, with the fact that this witness was allowed to listen to all the testimony and then to testify, is certainly sufficient to amount to an abuse of discretion and to require a reversal of this case.
Greek L. Rice, Attorney-General, by W.D. Conn, Assistant Attorney-General, for appellee.
As appellant's first argument, he has undertaken to commit the court to the principle of Rester v. State, 110 Miss. 689, 70 So. 881, which was that if in a trial for murder the evidence for the state, if believed, convicted the defendant of murder, if anything, and the evidence of the defendant, if believed, established a clear case of self-defense, it was error for the court to grant the state an instruction authorizing a verdict of manslaughter.
The Rester case and all others of its ilk were expressly overruled by the decision of this court in Calicoat v. State, 131 Miss. 169, 95 So. 318. The Calicoat case has been followed in a dozen or more cases since that time, the most of these cases being collated in the decision of this court in Bradford v. State (Miss.), 161 So. 138.
It is finally urged by the appellant that it was error for the court to allow the sheriff to testify in rebuttal to the effect that he examined the clothes of the deceased and found no powder burns or marks thereon, and, further, that the sheriff should not have been allowed to testify because the rule had been invoked and he had remained in the courtroom during the trial.
When objection was made on the ground that the rule had been invoked the court stated, and we think correctly stated, that the sheriff was exempt from the rule. The sheriff is an officer of the court and the rule cannot be invoked as against him in the situation presented by this record. However, in any case, whether a witness shall or shall not testify is a matter addressed to the sound discretion of the trial court.
Sartorious v. State, 24 Miss. 602; Thomas v. State, 103 Miss. 800, 60 So. 781; Smith v. State, 144 Miss. 437, 110 So. 119; Simmons v. State, 165 Miss. 732, 141 So. 288.
As to the other phase of this argument, that is, the competency of the testimony given by the sheriff with reference to powder burns, it occurs to us that this character of testimony was properly introduced in rebuttal. When the state rested its case, all the evidence showed that Noble had been killed while located from five to ten feet from appellant. As a matter of common knowledge, everyone knows that at that distance powder burns or powder marks from a .22 rifle would not be found on the clothing of deceased. It developed from the testimony of the defendant and his witnesses that the shooting occurred while deceased was engaged in a struggle with appellant. It, therefore, became proper to testify with reference to the condition of the clothing worn by deceased and it was proper for the sheriff to be allowed to testify that there were no powder burns or powder marks on deceased's clothing.
On the other hand, it appears that this court is now committed to the proposition that permitting testimony to be introduced in rebuttal which should have been introduced as substantive evidence in chief is not reversible error unless it appears that no opportunity was afforded the defendant to reply by way of surrebuttal testimony.
Clark v. State, 181 Miss. 455, 180 So. 602; Hunter v. State, 183 Miss. 779, 184 So. 835.
1. HOMICIDE.
In murder prosecution where defendant was convicted of manslaughter and evidence was sufficient to sustain conviction of murder, granting the state an instruction authorizing a verdict of manslaughter was harmless error.
2. CRIMINAL LAW.
Where rule was invoked, permitting the sheriff, who was not under rule, to testify for the state over defendant's objection was a matter within discretion of trial judge with which Supreme Court would not interfere in the absence of a showing that such discretion was manifestly abused.
Anderson, J., delivered the opinion of the court.
Appellant was indicted for murder and convicted of the crime of manslaughter in the circuit court of Claiborne County, and sentenced to the penitentiary for a term of 15 years. From that judgment he prosecutes this appeal.
The evidence was sufficient to sustain a conviction of murder. The court gave the state a manslaughter instruction. It is argued on behalf of appellant that this action of the court was reversible error. As stated, there was a conviction of manslaughter. Appellant argues that we should go back to the case of Rester v. State, 110 Miss. 689, 70 So. 881, which held that on a trial for murder where the evidence was sufficient to convict of that crime and the evidence for the defendant, if believed, established a clear case of self-defense, it was error for the court to grant the state an instruction authorizing a verdict of manslaughter. That decision was expressly overruled in Calicoat v. State, 131 Miss. 169, 95 So. 318. Since the Calicoat decision it has been followed with approval in several cases, which are collected in the memorandum opinion in Bradford v. State (Miss.), 161 So. 138. The error is harmless. We decline to overrule these cases.
The rule was invoked. The sheriff, who was not under rule, was permitted to testify for the state over appellant's objection. It is argued that the judgment should be reversed on that account. This was a matter within the discretion of the trial judge. This court will not interfere with that discretion except where it has been manifestly abused, which is not true here. Sartorious v. State, 24 Miss. 602. We know of no other decision since that changing or modifying the rule.
There is not sufficient merit in the other questions argued on behalf of appellant to call for a decision by the court.
Affirmed.
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