Allen v. State

• Decision Date: 31 October 1927
• Docket Number: 26537
• Citation: 148 Miss. 229,114 So. 352
• Court: Mississippi Supreme Court
• Parties: ALLEN v. STATE. [*]

114 So. 352

148 Miss. 229

ALLEN v. STATE. ^[*]

No. 26537

Supreme Court of Mississippi

October 31, 1927

(Division B.)

1. CRIMINAL LAW. Prosecuting attorneys comment on failure of defendant's wife to testify held not reversible error where judge sustained objection, and instructed jury to disregard remarks.

In prosecution for murder, prosecuting attorney's comment to jury on failure of defendant's wife to testify in his behalf held not reversible error, where objection was made and trial judge gustained it, and instructed jury to disregard remarks, and defendant, instead of moving for mistrial, proceeded with case, and reaped advantage of possible acquittal.

2. CRIMINAL LAW. Defendant's proceeding with trial after prosecuting attorney's objectionable comment to jury was equivalent of waiver of right to mistrial.

Action of defendant in proceeding with murder trial after prosecuting attorney's comment to jury on failure of defendant's wife to testify in his behalf, instead of moving court for mistrial and discharge of juryt was equivalent of waiver of his right to mistrial after court had sustained motion.

Division B

APPEAL from circuit court of Perry county.

HON. R S. HALL, Judge.

Thomas Allen was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Paul B. Johnson and Watkins & Young, for appellant.

The district attorney, in his closing argument, called attention of the jury to defendant's failure to call his wife as a witness, to which the defendant then and there excepted. Judge HALL sustained the exceptions and instructed the jury to disregard such remarks.

This court has so often held that it is reversible error for the prosecuting attorney to comment on the failure of the defendant himself or his wife to testify in criminal cases wherein he is charged with crime that we do not deem if necessary to argue this proposition further than to cite: Johnson v. State, 94 Miss. 91; Scott v. State, 80 Miss. 197; Cole v. State, 75 Miss. 142; Johnson v. State, 63 Miss. 313; Byrd v. State, 57 Miss. 243.

The fact that the circuit judge sustained the exceptions taken by the attorneys for the defendant did not cure the error committed by the district attorney.

Rufus Creekmore, Assistant Attorney-General, for the state.

It is insisted that this cause should be reversed and remanded because of the fact that the prosecuting attorney in his closing argument to the jury commented on the failure of the defendant to call his wife as a witness in his behalf.

There are two reasons why the argument of counsel cannot avail. First, the bill of exceptions is itself insufficient. In preparing this bill of exceptions for the judge to sign, counsel should have set out therein the exact language which was used by the district attorney in the argument to which objection was taken. It is not sufficient to set forth the conclusions which might have been reached by counsel as to the meaning of the argument or as to its legal effect as they are questions for this court to determine. The language which was used by the district attorney might very well have appeared to counsel, or even to the trial court, to be comments on the defendant's failure to call his wife as a witness, but to this court they might not so appear. Powers v. State, 83 Miss. 691.

But if I be mistaken in this position, then there is another reason why the position of counsel cannot be sustained. It will be observed from reading the bill of exceptions which the defendant made to the argument of counsel were sustained and the jury was instructed to disregard such remarks. Since this is true, no prejudicial error has been committed by the court and the judgment will not be reversed for this error alone.

None of the cases cited by counsel in their brief are authority for the position which is taken by them. It is true that in a number of cases, where the comments made by the district attorney were on the failure of the defendant himself to testify, our court has held that this error was not cured by the action of the court in instructing the jury to disregard the said remarks. But it will be observed from a reading of the opinions in those cases that they were based on the fact that the statute in such cases expressly prohibited any comment by counsel on the failure of the accused to testify. This expressed statutory prohibition does not apply where the wife of the accused is concerned. Yarbrough v. State, 70 Miss. 593; Reddick v. State, 72 Miss. 1008; Sanders v. State, 73 Miss. 444; Gurley v. State, 101 Miss. 198.

There are a number of cases, however, dealing with the exact proposition which is here presented, which are contrary to the position taken by appellant. See Carter v. State, 99 Miss. 435, 54 So. 734; Drane v. State, 92 Miss. 180, 45 So. 149; This point was expressly settled by our court in Cotton v. State, 135 Miss. 792, 100 So. 383; House v. State, 121 Miss. 436, 83 So. 611.

OPINION

HOLDEN, P. J.

Thomas Allen appeals from conviction on a charge of murder and sentence to the penitentiary for life. The testimony in the case fully warranted the jury in finding the defendant guilty as charged.

Appellant assigns one error for reversal, and that is that the judgment should be reversed, because the prosecuting...