Mackmasters v. State

Teuly, J.,

delivered the opinion of tbe court.

This is the third time this case has been appealed to this court. The first appeal was reversed on account of errors committed in the cross-examination of witnesses for the defendant by the district attorney. . 81 Miss., 314; s. c., 33 South., 3. The second appeal was reversed because of the improper admission of alleged confessions which were shown not to have been freely and voluntarily made. 82 Miss., 459; s. c.,'34 South., 156. Upon the third trial of this ease the district attorney was permitted to read from the official stenographic notes taken upon the first trial a portion of the statement made by the defendant, who voluntarily took the witness stand and testified in his own behalf. To this defendant objected, and, his objections being overruled, excepted to the ruling of the court. The district attorney read only a portion of the testimony .so given by the defendant upon the previous trial. This, too, was objected to by the defendant, who insisted that the district attorney be required to read the entire testimony of the defendant. The court overruled this objection, but granted to the defendant’s counsel the privilege of reading the parts omitted by the district attorney or any part thereof that they might desire. The defendant’s counsel did not avail themselves of this offer of the court, and did not read any of the parts of the statement which were omitted by the district attorney, contenting themselves with excepting to the ruling of the court, and this action of the court is one of the main grounds relied upon by counsel for the defendant for a third reversal of this cause.

It is well-settled law in this state that, where a defendant chooses to take the witness stand and testify in his own behalf, in any court, his statement upon that occasion can be used against him upon any future trial of the cause. In Hill v. State, 64 Miss., 440, 1 South., 495, Campbell, I., speaking for the court says: “He (the defendant) was examined as a witness for himself before the committing court, and his testimony there was read in evidence on his trial in the circuit court. Although he objected to this, it was clearly admissible.’’’ Where the state uses one as a witness iu the investigation of a criminal charge, the evidence thus obtained may not afterward be used against the person giving it; but where the statute mates an accused person a competent witness in his own behalf, and he testifies in the exercise of his right, this testimony may afterward be used against him.” See, also, Steele v. State, 76 Miss., 387, 24 South., 910; Campbell v. State, 81 Miss., 417, 33 South., 224. This rule so repeatedly approved by our court, is the true rule. Where a defendant who is by statute granted the privilege of testifying in his own behalf, or, if he so chooses, of remaining silent, in which event the district attorney is forbidden to comment on the fact of his silence, deliberately decides to assume the character of a witness, he assumes all the incidents of that position. No wrong was done the defendant by using his own statement of the details of the transaction delivered by him under the sanctity of an oath.

This is in no wise, as counsel for appellant contend, in the nature of a confession, and therefore the objection urged on that ground is not maintainable; nor did the state in any manner make the defendant its own witness by repeating to the jury his own story as told upon a former trial, and the fact that some portions of the statement so read reflected upon the credibility of the defendant cannot be distorted into violation of the rule which forbids a party introducing a witness afterward impeaching him.

We think the official stenographer’s notes as disclosed by this record, and from which the district attorney read, sufficiently authenticated to admit of their introduction. No objection was made on this ground at the time of the proposed introduction, and this was not assigned specifically as error in the motion for a new trial. Aside from this, the record shows that these were the notes of the official stenographer; shows the time, the place, and circumstances under which they were taken, whose testi-niony is detailed therein; and is certified by the official stenographer as being a true transcript of the testimony given in the said cause. We think this sufficient.

There was an utter absence of testimony that the statement of defendant which was read to the jury was not freely and voluntarily made, and the court properly overruled the objection based on that ground.

The contention that the state should have been compelled to read the entire testimony of defendant, including that portion in reference to the confession improperly admitted on the previous trial, is without substantial merit. The defendant was granted the privilege of introducing the entire statement, and this met every requirement of the rules of evidence.

The second ground mainly assigned as error and earnestly insisted upon by counsel for defendant is the insufficiency of the testimony to sustain the verdict. Upon the first appeal of this cause this court expressly said that it would not reverse the cause unless on account of the errors of law which were disclosed in that record, and this record contains practically the same state of facts. But, looking at this question as if not before presented, we think the. facts here disclosed fully warrant the conviction of manslaughter, and, in our opinion, the defendant has no ground to complain of the verdict or the sentence. Here is a state of case in which bitter antecedent malice, mutually entertained, had existed for years, marked with personal difficulties and continued bickerings and strife. Father and son were in open hostility towards each other. The father is found dead upon a by-path, at night, four hundred yards from his own residence, and about one hundred yards from the son’s residence. Footprints are found, showing the marked peculiarity of the defendant’s track, near the place where the dead body lay. The defendant is found soon afterward a short distance from the scene of the homicide, and up'on being accosted denies all knowledge .of his father’s death, and later, when he visits the place of the homicide, his attention being called to the footprints, and being told that witnesses would testify that he made them, he takes an early opportunity to clandestinely obliterate them. Further, his wife states that he arose from his bed upon hearing some noise (she knew not what), and, arming himself with a gun, half clad, he left the house, returning shortly thereafter. He ágain disappeared, and was not seen again until he puts in an appearance at the house where his father’s dead body then lay. When all these facts are taken into consideration, coupled with his own story, disjointed and contradictory, of how the difficulty occurred, it is no matter of wonder that the jury distrusted the plea of self-defense which he interposed. Certainly this appellant has had every opportunity granted him which the law could possibly afford. Three juries have passed upon his story, and each believed his guilt. Twice the punishment of the law was postponed by errors committed, but this time, after a thorough investigation of all questions of law and fact, we find no reversible error, and he must at last suffer the penalty of his crime.

Affirmed.