Augustine v. State

• Decision Date: 09 December 1946
• Docket Number: 36209.
• Citation: 201 Miss. 277,28 So.2d 243
• Court: Mississippi Supreme Court
• Parties: AUGUSTINE v. STATE.

28 So.2d 243

201 Miss. 277

AUGUSTINE v. STATE.

No. 36209.

Supreme Court of Mississippi

December 9, 1946

John T. Armstrong and Lena C. Zama, both of Hazlehurst, for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge Asst. Atty. Gen., for appellee.

ROBERDS, Justice.

Appellant and Virgil Smith and Howard White were jointly indicted under Section 2367, Code 1942, for robbery of C. C. Coen by the exhibition of a deadly weapon. Appellant was granted a severance; was convicted as charged and the verdict of the jury sentenced him to death.

On this appeal, he assigns and argues many alleged errors. We will consider and decide three of them which we think call for a reversal and remand of the case, and will then pass upon such others as will necessarily, or likely arise in a new trial.

The diligent district attorney, in his closing argument to the jury, said: 'That he had been or known of one man who had been tried for five different murders because the jurors followed the course of least resistance and turned him loose on the others; that he had seen people go to the penitentiary for five or six year terms, then come out to commit other crimes, and that unless a stern verdict was rendered in this case it would not stop crime, and that people who were sent to the penitentiary were given a pardon or suspension.'

Counsel for the defendant immediately objected to this argument and asked for a mistrial because thereof. The trial judge said 'Gentlemen, you have nothing to do with pardons or suspensions', and overruled the motion for a mistrial.

Cigarettes were a part of the property taken in the robbery. These were found by the officers several days later in a locked box in the home of the mother of Smith, a confederate. With them was found a 38 Iver Johnson Pistol. Smith had procured that pistol in New Orleans after the robbery. It was not at the scene of the robbery and was not taken as a part of the property. Goen did not own it. It fact, the proof shows without dispute that the only pistol used in the robbery was a cap, or toy, pistol. Mr. Coen testified he saw no pistol of any kind. The Iver Johnson Pistol was first admitted in evidence. Later, it was excluded. The latter ruling was correct. However, in his closing argument the district attorney said 'They come in here and ask for you not to send this defendant to the chair, because a cap pistol was used, but, gentlemen of the jury, we find the cigarettes and on top of those cigarettes what do we find? This pistol.' And, he then reached to the table and asked where the pisto was, meaning the pistol which had been excluded. Counsel for defendant objected and asked for a mistrial. The court instructed the jury to disregard the statement that this was the pistol '* * * used on the night of the robbery; that there was no testimony identifying this as the same pistol', and then overruled the motion for a mistrial.

The third question arose under these conditions: The crime occurred Monday night about eight o'clock. The following Friday, appellant was arrested in New Orleans. The officer in charge of appellant testified to a confession made to him as they returned to Mississippi. In the course of his testimony he said appellant told him that two or three days before the robbery appellant and his confederates hired a taxi in New Orleans '* * * to take them out to some street * * * I forgot the name of the street * * * and they told him they wanted to stop, and when he stopped they told him it was a stick-up.' Appellant objected to this line of testimony and the objection was overruled before the witness got to the quoted statement. Immediately after the quoted statement was made, appellant objected and moved for a mistrial, especially because of the use of the word 'stick-up'. The objection was overruled, the trial judge admonishing the witness to 'Confine your testimony to this offense.'

The facts in this case are somewhat unusual. When Augustine was arraigned, he had no counsel and he undertook to plead guilty. The trial judge refused to accept that plea, whereupon a plea of not guilty was entered. On the trial of the case, the State introduced a number of witnesses to whom appellant had voluntarily confessed that he participated in the robbery. He himself took the stand as a witness on the trial and frankly stated his part in the robbery. The only real question before the jury was the extent of the punishment, said section providing that one convicted thereunder 'shall be punished by death if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years.'

We will deal with the remarks about suspensions and pardons. In Magee v. State, 198 Miss. 642, 22 So.2d 245, 248, this Court said: 'The question is not merely whether the jury may have found the defendant guilty of murder in the instant case * * * but also whether such proof may have influenced the jury to fix the death penalty as his punishment.'

In Abney v. State, 123 Miss. 546, 86 So. 341, the district attorney, in urging the jury to return a verdict of murder instead of manslaughter, referring to the lighter punishment for manslaughter, said: 'The maximum penalty is 20 years in the state penitentiary and the minimum penalty is absolutely in the discretion of the court.' This Court held that these remarks constituted reversible error.

In Hartfield v. State, 186 Miss. 75, 189 So. 530, 532, the district attorney urged the jury to return a verdict of murder in such form as that it would necessarily carry the death penalty instead of a verdict for manslaughter or life sentence in the penitentiary, 'Because he is already there under a life sentence, and anything less than the death penalty would not be any punishment in this case'. The Court held this argument to be error.

In Minor v. State, 101 Miss. 107, 57 So. 548, the Court held that it was reversible error for the prosecuting attorney, on a charge of murder, to say to the jury 'If you bring in a verdict of manslaughter, the court does not have to sentence her to the penitentiary, but can fine her or send her to the county farm.'

Likewise, in Windham v. State, 91 Miss. 845, 45 So. 861, the Court held it was error for the prosecuting attorney, where the defendant was being tried for murder, to urge in his argument to the jury that the judge could, in his discretion, punish the defendant, if convicted of manslaughter, either by fine or imprisonment in the county jail, or for a term of years in the penitentiary.

In State v. Johnson, 151 La. 625, 92 So. 139, 142. The prosecuting attorney in his closing argument said: 'That the evidence in this case demands the death penalty, and while the law authorizes the jury to return a verdict of guilty as charged, without capital punishment, which would call for the sentence of life imprisonment in the penitentiary, this law is a farce, or rather a fiction of the law. It does not mean what it says. It only means that the defendant would be sentenced to serve his natural lifetime in the penitentiary, and history shows that, after a short period of time, say 5, 10, or 15 years, he would be turned loose again on society.' The Louisiana Court, in responding to that argument, used this language: '* * * The district attorney should refrain from bringing to bear upon the jury his personal and official opinion that, by reason of an unwise (in his opinion) parole system, there was no life imprisonment in this state, and which argument could have no other purpose than to influence the jury in favor of an unqualified verdict. Simply because the law-making power of the state has seen proper, in the exercise of its wisdom, to create a pardoning board, and to establish a system of parole, and just because under that system, a life termer is occasionally pardoned or paroled, furnishes no sufficient reason in law for an appeal to the jury to disregard the statute which vests in them the discretionary power to qualify the verdict, and to treat that law as a farce and utterly without any meaning whatever.'

In the case of State v. Henry, 196 8la. 217, 198 So. 910 923, the prosecuting attorney, after reciting to the jury his personal knowledge of cases where pardons had been granted, used this language: '* * * As I was saying when interrupted you all know as well as I do that life imprisonment does not mean that. I am giving you an example of it, and you all no doubt know of many others. Through the...