Holliday v. State , 108 Miss. 726 ( 1914 )

Cook, J.,

delivered the opinion of the court.

Appellant was convicted for the unlawful sale of intoxicating liquors,. and, being not altogether satisfied, appeals to this court for relief.

We gather from the record that an affidavit had been made against Walter Sellers for selling intoxicating liquors. When this cause came on for trial before the justice of the peace, the witnesses for the state were asked to point out the man who sold them the liquor, and they pointed to the defendant in this case — Dan Holliday. Whereupon Walter Sellers was discharged, and the officer of the law made an affidavit against Dan Holliday.

We also gather from the record that, on the trial of appellant in the circuit court, his counsel offered to prove what occurred on the trial of Sellers in the justice court. It seems that Sellers, or his counsel, endeavored to set the stage so as to entrap the state’s witness into pointing out some other person for Sellers than Sellers himself.

To pull off this little comedy, appellant was induced to sit behind counsel in such manner as to indicate that he was the party on trial. When the state’s witnesses were asked to point out the man who sold them the liquor, they promptly identified Holliday as the’ man. So it was that instead of staging a comedy, so far as appellant is concerned, they had staged a tragedy. In other words, they had baited a hook to catch suckers, but they had caught a tiger instead.

When appellant undertook to have a witness rehearse the harrowing details of this serio-comic performance in the justice court, the district attorney interposed an objection, which was sustained. It is a bit difficult to see how a rehearsal of the occurrence in the justice court could be of any value to appellant. True, it might have furnished amusement to the jury and kept them guessing as to the pertinence of the diversion to the matter in hand1. • There seems to be no doubt that the state’s witnesses were unacquainted with the man who sold1 them the liquor.. They did not know his name ;• but "they did know the man.

The state’s witnesses are called detectives, which means that they were used by the officers to natch “blind tigers” and to break up the sale of intoxicants'. They say they bought liquor from' this defendant and were informed that his name was Sellers; that he told’ them that his name was Sellers when they got the liquor. The jury believed the detectives, and it thus • appears that, when appellant attempted to play the clown .in the free show pulled off in the justice court, he succeeded in putting his own neck in the halter.

The record, we think, shows that the jury got the "benefit of what defendant was seeking to prove in spite ■of the rulings of the court upon the details and the manner of getting the alleged evidence before the jury.

This defendant undertook to show his innocence by proving that he was not at the alleged scene of the crime at the time fixed by state’s witnesses, but was at another place. He did not succeed very well, but we will •assume that he did for the purpose of, the next assignment of error.

The court refused to instruct the jury as follows:

“The court instructs the jury for defendant that where the defense is an alibi, and the evidence in support of it, viewed in connection with all the testimony, is in this particular case sufficient to raise a reasonable doubt as to guilt, the accused is entitled to an acquittal.”

We do not think there was any error in refusing' this "instruction. Of course the court should, when requested, define alibi and inform the jury that it is a legal ■defense. The instruction, as requested, merely tells the. jury that they should acquit the defendant, if they had a reasonable doubt of his guilt. The given instruction bold the jury the same thing in different language.

The court refused to instruct the jury that it was their duty to “cautiously scrutinize” the testimony of a detective. The jury should cautiously and carefully weigh the evidence of all witnesses, hut we know no statute or rule of evidence which requires the jury to-regard detectives as liars, until the contrary is proven. There is no law authorizing the court to say that defectives’ evidence should he looked upon with suspicion. The. jury are the sole judges of the credibility of witnesses and the weight of evidence, and they are just as able to discriminate between witnesses. as is the-judge.

Affirmed..