Aldridge v. State

• Decision Date: 03 January 1938
• Docket Number: 32876
• Citation: 180 Miss. 452,177 So. 765
• Court: Mississippi Supreme Court
• Parties: ALDRIDGE v. STATE

177 So. 765

180 Miss. 452

ALDRIDGE v. STATE

No. 32876

Supreme Court of Mississippi

January 3, 1938

Division A

1. CRIMINAL LAW.

Appellate court will not review argument of prosecuting attorney as comment on accused's failure to testity unless it clearly appears that comment was made on accused's failure to testify.

2. CRIMINAL LAW.

Where a bill of exceptions sets forth no ruling on objection to alleged improper argument of prosecuting attorney and case was submitted to jury without any request that it be withdrawn from them and a mistrial entered on that ground appellate court would not review question.

3. CRIMINAL LAW.

If bill of exceptions shows that trial court overruled objection to alleged improper argument of prosecuting attorney, trial court's ruling may be reviewed on appeal.

4. CRIMINAL LAW.

If trial court sustains objection to alleged improper argument of prosecuting attorney, it then becomes necessary for accused to request mistrial to preserve his right in respect thereto, since accused has obtained ruling requested, and without request for mistrial he waives any further complaint of the argument.

HON JULIAN ALEXANDER, Judge.

APPEAL from the circuit court of Madison county HON. JULIAN ALEXANDER, Judge.

Lewis Aldridge was convicted of murder, and he appeals. Affirmed.

Affirmed.

Jack M Greaves, of Madison, for appellant.

The appellant realizes that this Honorable Court rarely disturbs the finding of facts by a jury, nor reviews such findings except to determine whether or not there is sufficient evidence, if believed by the jury, to support the verdict. This case is one of the rare cases because appellant's conviction is based solely on circumstantial evidence, and was convicted on the evidence of one witness who is shown to be unworthy of belief by competent witnesses. Appellant bases his right to a review on Thomas v. State, 129 Miss. 322, and Permenter v. State, 54 So. 949.

Proof of reasonable doubt of itself proves nothing unless the inference deductible from the facts so proven excludes beyond a reasonable doubt every other hypothesis than that of guilt.

Haywood v. State, 90 Miss. 461; Permenter v. State, 54 So. 949.

Appellant further says he should be granted a new trial because of certain remarks made by C. B. Greaves, special prosecuting attorney in this case. Mollie Haynes was called as a witness for the State and says that she lived in the house with appellant and the deceased; that the appellant was highly desirous of having her for his lady love, and that about one week before the death of Lena Alridge, appellant asked her in the event Lena Alridge should die. would she be his woman. Appellant did not take the stand in his own behalf, and the Hon. C. B. Greaves, attorney for the prosecution, in his opening remarks to the jury said that no one had denied this love affair; appellant's attorney promptly called for the court reporter who was absent, and he then entered a timely objection to the remarks of C. B. Greaves, and set out his reasons therefore as fully appear in the two bills of special exceptions filed in this appeal; the Honorable Court failed to sustain appellant 's objections to the remarks of C. B. Greaves, but only requested Mr. Greaves to be more specific in his remarks. There was no need for appellant to request a new trial at thai stage of the trial because the court would not sustain his objection, and he would have been asking for something that did not exist.

Where court sustains defendant's objection to remarks of district attorney, defendant must move for a mistrial in order to be in proper standing before the Supreme Court. In present case nothing existed for said motion to be made because defendant was not sustained in his objection.

Allen v. State, 114 So. 352; Ransom v. State, 115 So. 208.

C. B. Greaves again said that no one had denied this love affair between this yallow gal and the defendant. Appellant again objected because Mollie Haynes, black as an ace of spades, was the only one who had testified as to the love affair, and the defendant was the only one on earth who could deny same. The remarks of C. B. Greaves, attorney, were a direct reflection on failure of appellant to testify in his own behalf.

Keeton v. State, 102 Miss. 747; McLeod v. State, 130 Miss. 83; Elmore v. State, 143 Miss. 318; Yarbrough v. State, 70 Miss. 593; Reddick v. State, 72 Miss. 1008; Sanders v. State, 73 Miss. 444; Harris v. State, 96 Miss. 379.

Russell Wright, Assistant Attorney-General, for the state.

The testimony of witness as to facts authorizing conviction, where corroborated, will sustain conviction, notwithstanding witness' bad reputation for truth and veracity.

Blackwell v. State, 161 Miss. 487, 135 So. 192.

A verdict will always be permitted to stand, unless it is opposed by decided preponderance of the evidence, or is based on no evidence whatever.

Cicily v. State, 13 S. & M. 202; Browning v. State, 33 Miss. 47.

Defendant alleging exception must show affirmatively in the record: and unless a bill of exceptions shows error, none will be presumed.

McQuillon v. State, 8 S. & M. 587.

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