O'Dell v. State , 140 Miss. 719 ( 1925 )

^* Headnote 1. Witnesses, 40 Cyc., pp. 2492, 2531. Ophelia O'Dell appeals from a conviction on a charge of unlawful sale of intoxicating liquor.

Reversal is urged upon several grounds, among them being the failure to prove the venue; but we shall notice only one point, which will result in a reversal of the judgment of the lower court; and the other questions may not arise on a second trial.

The state offered a witness by the name of Brooks, who testified that he went into the house of appellant, O'Dell, and bought a bottle of liquor from her. He said that another man was with him at the time, and took part in the purchase of the whisky. On cross-examination counsel asked witness Brooks who the party was that was with him at the time the liquor was purchased, and Brooks refused to divulge his name because, as he said, he had promised the party not to mention his name in the matter. Counsel for appellant insisted that the witness tell the name of the person who was with him, and the witness persistently refused to tell who accompanied him and assisted in the purchase of the liquor. When pressed hard, he said that it was a white man, and that he invited him (witness), and took him in his car.

After this witness Brooks had obstinately refused to tell the name of the party who, he claimed, was with him at the sale, counsel for appellant appealed to the court to compel the witness to answer the question and disclose who was with the witness at the time the liquor was bought. The court refused to compel the witness to testify as to the name of the man who was with Brooks, and counsel for appellant excepted to the action of the court, stating to the court that he desired to know the name of the unknown party so that he could contradict and impeach the testimony of the witness and show that no such transaction as claimed by the witness occurred, and to discredit the story of the witness in many other respects. But the court refused to compel Brooks to tell who was with him at the time the liquor was purchased from the appellant.

Now, without going into details in discussing this point, it is our opinion that the court erred in denying the appellant the right to have the witness Brooks state who the white man was that he claimed was with him at the time the whisky was purchased from appellant. A witness cannot rightfully refuse to disclose the name of one who was present when an offense is charged to have been committed, simply because he had promised or "given him his word" that he would not tell anyone about it. The testimony that counsel for appellant attempted to compel Brooks to give might have been exceedingly important to the appellant, and might have resulted in the complete impeachment and destruction of Brooks' story if the name of this stranger had been disclosed so that appellant could bring the man in and face Brooks with the charge that he was present and participated in the purchase of the whisky. Rogers v. State, 88 Miss. 38, 40 So. 744; Mask v. State, 32 Miss. 405; 40 Cyc. ___.

For the error mentioned, the judgment of the lower court will be reversed, and the case remanded.

Reversed and remanded.