Holifield v. City of Laurel ( 1909 )

Whiteield, C. J.,

delivered tbe opinion, of tbe court.

Tbe testimony of tbe police justice of tbe city of Laurel, Mr. Gavin, is manifestly incompetent, under tbe decisions of Owens v. State, 63 Miss. 450, and Dukes v. State, 80 Miss. 353, 31 South. 744. Tbe whole subject was exhaustively considered in tbe case of Dulces v. State, supra, and we feel ourselves bound, by tbe former decisions of this court, to bold as we have announced therein. We said, in tbe Dukes case, at page 362 of 80 Miss., and page 745 of 31 South.: “It doubtless would be well for our legislature to enact that such testimony should be received in all the categories mentioned in section 1195 of Dr. Bishop’s New Criminal Procedure. Volume 1, § 1195.” In that section Mr. Bishop said: “Of necessity, if a witness has died, or has become insane, though but temporarily, or by tbe opposite party is kept out of the way, or is too ill or infirm to come to the court (for it .cannot adjourn to his house), or if from any cause for which the party is not responsible, such as residence beyond the process of the court, or the like, the witness’ personal presence cannot be had (a rule as to which tbe decisions are somewhat indistinct and inharmonious), added to which, if there has been a prior proceeding, involving the same issue, between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witness against him — not otherwise — what was on such former hearing testified to by a witness whose presence cannot now be had may be shown against the defendant.”

We once more repeat that the legislature should change the rule of evidence on this subject, as indicated in that section, and we trust that the legislature soon to meet will not fail so to do.

Reversed and remanded.