Blackwell v. State

• Decision Date: 08 June 1931
• Docket Number: 29496
• Citation: 135 So. 192,161 Miss. 487
• Court: Mississippi Supreme Court
• Parties: BLACKWELL v. STATE

135 So. 192

161 Miss. 487

BLACKWELL v. STATE

No. 29496

Supreme Court of Mississippi

June 8, 1931

Division B

1. CRIMINAL LAW. Weight and credibility of evidence is for jury's determination; testimony of witness as to facts authorizing conviction, where corroborated, will sustain conviction, notwithstanding evidence of witness' bad reputation for' truth and veracity.

The weight and credibility of the evidence is for the decision of the jury, and a witness who is competent to testify, who testifies to facts authorizing a conviction, is sufficient to sustain a conviction, although there may be evidence tending to show the witness was not of good reputation for truth and veracity, where other testimony corroborated such witness.

2. CRIMINAL LAW. Where prosecuting attorney's argument is objected to as improper, bill of exceptions should embody enough of language used to show context.

Where statements of the prosecuting attorney are objected to as being improper, a sufficient amount of the language used should be embodied in the bill of exceptions to show this court the context in which the language was used, so that the real meaning of the language may be judged by the context.

3. CRIMINAL LAW. Prosecuting attorney may comment upon evidence and draw such conclusions therefrom as he thinks proper, and may criticize testimony and call witnesses by name; different rule applies to attorneys from that applicable to judges with reference to commenting on evidence.

A prosecuting attorney can comment upon the evidence in the case and may criticize the same and call witnesses by name and deduce from the evidence such conclusions as he thinks are proper, although the trial judge could not grant instructions, commenting on the evidence or singling out the witnesses. A different rule applies to the attorneys in the case from that which applies to the judge in such cases.

4. CRIMINAL LAW. In murder prosecution, argument of prosecuting attorney, "Do you blame the defendant for coming on the witness stand and swearing a lie and committing perjury to save his life," held improper, though not reversible error.

The law does not justify or excuse perjury or false swearing in any case, even though the witness' life may be involved in the issue, and it is improper, but not reversible error, for the prosecuting attorney in his argument to state to the jury "Do you blame the defendant for coming on the witness standing and swearing a lie and committing perjury to save his life---I would do it myself."

ON SUGGESTION OF ERROR.

(In Banc. Oct. 19, 1931.)

[137 So. 189. No. 29496.]

CRIMINAL LAW. In murder prosecution, prosecutor's argument regarding defendant's perjury to save his life, though improper, held mere conclusion and therefore not reversible error. A statement by a prosecuting attorney in his argument viz., "Do you blame the defendant for coming on the witness stand and swearing a lie and committing perjury to save his life---I would do it myself," is not a statement of fact, but is a mere inference or conclusion of such officer.

ANDERSON J., dissenting.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of De Soto county, HON. GREEK L. RICE, Judge.

G. H. Blackwell was convicted of murder, and he appeals. Affirmed.

On suggestion of error. Former judgment affirmed.

For former opinion, see 135 So. 192.

Affirmed. Affirmed.

Logan & Barbee, of Hernando, for appellant.

The language used by the district attorney in his closing argument was prejudicial to appellant's rights and constitutes reversible error.

Buckley v. State, 62 Miss. 705; Woods v. State, 7 So. 495, 67 Miss. 575; Glenn v. State, 2 So. 109; Brown v. State, 23 So. 422; Townsend v. State, 12 So. 209; McEwen v. State, 16 So. 242; Rucker v. State, 18 So. 121; Smith v. State, 43 So. 465; Gaines v. State, 48 So. 182; Chatman v. State, 59 So. 8; Jones v. State, 122 So. 760.

All of the above cases cited refer to an instruction granted by the trial court upon which error was based, and none of the cases have reference to a misstatement of the law of the case by the district attorney in his argument to the jury.

The argument made by the district attorney in closing the case for the state, the language used by him was extremely prejudicial to appellant and to all intents and purposes, and in effect, violates the rule announced in the cases cited supra. If it be reversible error for the trial court to grant an instruction that the jury are the sole judges of the weight and worth of the evidence and the credibility of the witnesses, and in determining what credence to be given to the testimony of any witness or witnesses they may take into consideration his opportunity to see and know the matter about which he is testifying, his or their interest in the subject-matter, if any, and interest, if any, in the result of the trial, and his conduct on the witness stand, and if, from the whole evidence in the case, they believe any single witness has wilfully and corruptly sworn falsely with reference to any material matter, the jury may disbelieve the testimony of such witness altogether in making up their verdict, it surely cannot be maintained that counsel for the state can, in the absence of such an instruction, proceed to argue to the jury the very thing that this court has condemned in every case in which an instruction of this character was granted by the trial court.

It is the duty of counsel both for the state and for the accused to discuss the instructions given by the trial judge in the argument before the jury, to assist the jury in applying the law, applicable to the proof iii the case.

It is error for the prosecuting attorney in argument to misstate the law applicable to the case, and the court may at any time interrupt counsel to correct his statement of the law or may do so in the charge.

16 C. J., p. 913, sec. 2264 C.

It is improper, however, for counsel to argue immaterial questions of law not within the issues, or where the court determines the law, to argue against the rules laid down by the instructions or to state to the jury a wrongful interpretation of the courts instructions.

11 C. J., p. 912; Elder v. State, 65 S.W. 938; Brock v. State, 141 S.W. 756; State v. Jones, 115 S.W. 994.

Prosecuting attorneys should confine their remarks to a legitimate discussion of the facts developed on the trial and the instructions applicable thereto.

Burton v. Commonwealth, 152 S.W. 545; 16 Corpus Juris, p. 900, sec. 2246 G; Martin v. State, 63 Miss. 505; State v. Schneiders, 168 S.W. 604, 259 Mo. 319; State v. Mircovich, 130 P. 765, 35 Nev. 485, 160 S.W. 705; Bishop v. State, 72 Tex. Cr. R. 1, Ann. Clases, 1916 E. 379; State v. Fisher, 424 Mo. 460, 27 S.W. 1109; Burton v. Commonwealth, 152 S.W. 545.

Zeal in the prosecuting attorney is entitled to the highest commendation, but it must be exercised within proper limits. People v. Liska, 126 N.W. 636.

This court has held in numerous decisions, and some of them will be cited or rather a reference made to them, that it is wholly unnecessary to move for a mistrial when the trial court overrules objeetions made to the language and argument of the district attorney.

Allen v. State, 148 Miss. 229, 114 So. 352; Redwine v. State, 149 Miss. 741, 115 So. 889; Matthews v. State, 148 Miss. 696, 114 So. 816.

The matters complained of are legally and properly before this court for review.

W. A. Shipman, Assistant Attorney-General, for the state.

Upon the entire and varying evidence received and permitted to stand in the case and all the probative incidents of the trial comments may be made; and the conclusion derived therefrom adverse to the defendant need not be stated in soft words.

2 Bisb. New Cr. Proc. (2 Ed.), p. 796, sec. 975 (a) and Notes 90 and 91 thereunder.

A large discretion in this matter must be exercised by the circuit judge. It is a very delicate duty; for he must be cautious not unduly to abridge the liberty of counsel, and, in restraining him within proper limits must not deny him the full liberty of discharging his important duties in enforcing his views of the law and the evidence.

Cavanah v. State, 56 Miss. 299; Martin v. State, 63 Miss. 505; Jennings v. State, 118 Miss. 619, 79 So. 814; Bufkin v. State, 134 Miss. 116, 98 So. 455.

It was the duty of counsel for appellant to move the court for a mistrial and a discharge of the jury, but, instead of counsel so doing he proceeded with the case, find reaped the advantage of a possible acquittal.

Allen v. State, 148 Miss. 229, 114 So. 352; Matthews v. State, 148 Miss. 696, 114 So. 816.

It is not, however, every argument that is improper that will cause a reversal of a, case. Before this court will reverse the ruling of the trial court, it must appear that the argument was well calculated to influence the verdict of the jury, and the court was, in default in exercising its duty of super intending the trial so as to prevent injustice to any litigant whose rights are involved in such trial.

Matthews v. State, 148 Miss. 696, 114 So. 816; Redwine v. State, 149, Miss. 741, 115 So. 889.

It may be true that the statement of counsel concerning the announcement of a rule of law by the district attorney was incorrect in that the same failed properly to qualify and state exceptions to the major clause of the rule. But counsel fall into error in saying that the statement by the district attorney purported to be a statement of the "law of the case."

Bouvier's L. D. "law of the case," p. 1882.

It was merely the district attorney's opinion.

It was the written instructions of the court to which the jury looked for guidance on the principles of the law, and not to any attempt at oral statement thereof by the district...