Dodd v. State , 88 Miss. 50 ( 1906 )

Calhoon, J.,

delivered the opinion of the court.

This record discloses an indictment for murder and conviction of manslaughter. The only point for consideration arises out of the examination by the district attorney of his own witness, Lott, the court permitting him to treat this witness as hostile, because taking him by surprise in testifying contrary to what he had previously told him on private examination. The question was whether the accused drew his pistol before or after the deceased stooped to pick up a brick. It would be enough to say that no harm resulted as the witness did not vary his version of the facts, and no effort was made by the state to impeach by evidence of variant statements. In the case of Dunk v. State, 84 Miss., 454, 455 (36 South. Rep., 609), the surprise to the district attorney was based on hearsay, and not on statements made on any previous personal inquiry, and, besides, the district attorney was permitted to introduce witnesses to prove contradictory statements in order to impeach him. That case was right, and we refer to it for a full exposition of the law on the subject. It must be such an abuse of discretion in allowing cross-examination of one’s own witness as works harm to justify this court in reversing.

Affirmed.