Rucker v. State , 71 Miss. 680 ( 1893 )

Woods, J.,

delivered the opinion of the court.

All assignments of error are without avail, save one, and for this error we are constrained to reverse the judgment of the court below. On the cross-examination of the state’s witness, Cy Rucker, the predicate was properly laid for the introduction of evidence to contradict his statement as to what was said by him in response to an inquiry "made by C. C. Rucker of him, the witness, as to why he shot at the deceased immediately after he fired his gun. The matter on which it was sought to contradict was material. The conflict, between the state’s witness and the accused, as to the circumstances attendant upon Cy’s shooting, was direct and violent. The state’s witness testified that he shot under compulsion and to save his own life from threatened injury at the hands of the accused. . This evidence of Cy was contradicted flatly by the prisoner’s testimony, and, for the purpose of discrediting Cy, the foundation was laid, in his cross-examination,, for the introduction of the contradicting statement said to have been made by him at the time of the commission of the homicide.

This impeaching evidence was competent, and the serious difficulty which confronts us is as to the manner in which it was sought to be introduced. The impeaching witness was to state, in general terms, what was Cy’s answer when C. CRucker asked him what he (Cy) shot for. The witness was asked to state what Cy said, without repeating to him, in terms, the question which had been put to Cy in the laying of the predicate for his impeachment by the introduction of his contradictory statements made out of court. The question to be determined is, was tbe general interrogation propounded to the impeaching witness the proper method of examination, or should the question have been put in the words employed in cross-examining the witness sought to be discredited? To state it in simpler and clearer form, should leading questions be permitted to be propounded by counsel to his own witness, who has been introduced to impeach an opposing witness, by showing that such adverse witness has made other and contradictory statements touching the material point to which he testified?

The question must be answered, generally, in the negative, and for several reasons. If the discrediting witness be really in possession and having memory of the particular contradictory statements supposed to have been made, and as to which he is called to testify, it will be quite enough to direct his attention to time, place and person, and the subject of the conversation in which the contradiction is thought to be found, and then ask, generally, what the witness sought to be discredited said. If he be truthful and of ordinary memory, this course of examination will be sufficient, usually, to secure the' desired evidence. If he be untruthful, or without clear recollection, this course of examination will result in nothing, as, indeed, in such case, it should.

But again, the indulgence in leading questions of the character we are considering, where the very words are put into the impeaching witness’ mind and mouth, suggests to the party’s witness exactly what answer is desired by counsel, and what is necessary for him to say in order that the side calling him may put down a hurtful witness of the adversary party. As has been strikingly said, this method of examination supplies a forgetful witness with a false memory and a lying witness with a ready answer. And it is painfully unjust to the witness sought to be impeached to permit his veracity assailed, not by the clear and unaided evidence of a competent and trustworthy person, speaking his own mind and from his own memory, but by a dull or a willing tool, dexterously ■supplied with evidence furnished him' ready made in the form of leading questions.

To us it seems clear that the reasons for denying to a party the right to lead his own witness are of vigorous force in the very instances we are considering. There can be no danger of failure of justice in any ease by pursuing the ordinary and approved course of examination, and, primarily, ask the impeaching witness what the other witness said, and not ask him whether the other said any particular words or used such and such language. See Allen v. State, 28 Ga., 395; Gould v. Norfolk Lead Co., 9 Cush. (Mass.), 338; 2 Phil. Ev., ch. 1, § 10.

Greenleaf, in his invaluable treatise on evidence, states the exception to the general rule as we have laid it down, as follows : “ In some cases, however, leading questions are permitted, even on direct examination, namely, . . . where the mind of the witness, from the nature of the case, cannot be directed to the subject of the inquiry without a specification of it — as, where he is called to contradict another as to the contents of a letter which is lost, and cannot, without suggestion, recollect all its contents, the particular passage may be suggested to him. So, where a witness is called to contradict another, who had stated that such and such expressions were used, or the like, counsel are sometimes permitted to ask whether those particular expressions were used, instead of asking the witness to state what was said.” 1 Greenleaf on Ev., §§ 569-70. For the refusal of the court below to permit the defendant to answer the general question, “ What did Cy answer when your father asked him what he shot foi’,” we are forced to reverse the judgment and award a new trial.

The accused has no ground to complain of the instructions. The law was most liberally charged on his behalf. The deceased was not an escaped felon, and he was entitled to exercise the right of self-defense, even if he had fled and attempted to conceal himself from armed persons pursuing him for an offense he never committed. Grant that he was or had been unlawfully engaged in the manufacture and sale of distilled liquors, and that he had escaped from confinement in the county jail on conviction for a misdemeanor, this defendant and his armed fellow-pursuers were not aware of these small-offenses, and they were not hunting him down to arrest him for these things. "What these incidents and events had to do with the killing of the man, it is difficult to conjecture. They were illustrative of his timorous conduct in fleeing and hiding himself from his pursuers in the ditch where he met his miserable death, but we are perplexed to conceive in what way they shed light on the conduct of the accused.

The instructions, too, which left it broadly to the jury, on the evidence offered on the point, to say whether the prisoner did not have an honest belief that the deceased had committed a felony, were most favorable to the accused, under the facts in proof, seeing no inquiry was made by the accused, before the armed pursuit of the deceased was begun, of theKellys, father and son, or any other person known to the accused, as to who fired 'on his brother in the road at Kelly’s, house early that morning, but the deadly chase of the hunted old man was Degun on the false statement of the drunken youth who had actually fired that shot. The consideration of the question of diligence or want of diligence shown by the prisoner, in seeking to ascertain the person who had fired upon his brother, before taking up the armed hunt for the supposed felon, who might readily have been seen to be no felon, was wholly overlooked.

The instructions, too, which overlook, not to say by implication deny, to the dead man the right to defend himself against armed pursuers, whose avowed purpose was to arrest him and carry him before a magistrate for an offense he bad not committed, and for which he had no reason to believe he-was being hunted by these pui’suers, armed with deadly weapons, persistent in their chase, and under circumstances, as. detailed by the state’s witness, Cy Rucker, well calculated to arouse the liveliest apprehensions of danger in the mind of the deceased — these instructions are not to be complained of by this defendant.

Reversed, and remanded.