Brown v. State

• Decision Date: 20 February 1911
• Docket Number: 14946
• Citation: 54 So. 305,98 Miss. 786
• Court: Mississippi Supreme Court
• Parties: ALBERT BROWN v. STATE

54 So. 305

98 Miss. 786

ALBERT BROWN v. STATE

No. 14946

Supreme Court of Mississippi

February 20, 1911

APPEAL from the circuit court of Lee county, HON. JOHN H. MITCHELL Judge.

Albert Brown being convicted of manslaughter appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Clayton Mitchell & Clayton, for appellant.

The sixteenth assignment of error refers to the action of the court in permitting counsel for the state to comment on the failure of the defendant to produce his brother and father as witnesses in his behalf. The attention of the court was called at the time the argument was being made, and a special bill of exceptions taken at that time. Under the testimony in this case it is as reasonable to believe that defendant's brother or his father did the killing as that defendant did it. This being true it was certainly error for the court to permit the counsel for the state to comment upon the failure of the defendant to produce these witnesses. If the defendant's brother did the killing he could not be compelled to testify because of the constitutional guaranty that a person will not be compelled to incriminate himself.

Then is the defendant's case to be prejudiced before the jury because he doesn't produce his brother as a witness, to go upon the stand and admit his guilt, a thing that he could not be compelled to do. Argument of counsel before the jury was in effect that the defendant must be found guilty because he did not produce the man who did the killing. It has been held many times in this state that comment on the failure of a defendant to produce his wife as a witness in his behalf is reversible error; and the reason of this rule is well set out in Cole v. State, 75 Miss. 144.

It is because the law gives the defendant the privilege of using his wife as a witness in his own behalf, but the state is denied that privilege. Any argument on the part of counsel for the state, drawing inferences unfavorable to the defendant, based upon his failure to produce witnesses not under his control and power is fatal error.

In Johnson v. State, 63 Miss., on page 316, the court says "It is true that generally unfavorable inferences may be indulged in against a party who fails to produce material and necessary testimony, which is within his power and control, but this rule has never been applied to cases where the law on grounds of public policy, has established privileges against being compelled to produce it."

The law has established a privilege as to this kind of testimony, by way of a constitutional guaranty that a person will not be compelled to incriminate himself. Would it be contended that defendant could have compelled his brother to testify, if his brother is the party who did the killing? Then if not why should his case be prejudiced by comment of counsel on his failure to have his brother produced as a witness, if he could not compel him to testify? The argument before the jury amounted to saying that this defendant should be convicted because his brother and father would not come to his rescue, and admit their guilt. This was beyond the bounds of legitimate argument, and placed a matter in the scales against defendant which the principles of our law condemns.

Boggan & Leake, for appellant.

The contention of the state in this case was that the person that did this killing was guilty of murder and that of the appellant was that he could not have been guilty of anything but manslaughter. If one of these contentions is right then the other is wrong; we believe that this case clearly comes under section 1237 of the Code of 1906, which reads as follows: "Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter." Also, see Long v. State, 52 Miss. 23.

It would certainly be a hard law that would give the person committing an offense less than felony mentioned in section 1233 of the Code of 1906, the benefit of the mitigation of his offense to the crime of manslaughter and then refuse to give a man the same benefits, that was at the time of the killing trying to protect his property against thieves as was the case here and about which there is no controversy.

We think the case cited by associate counsel of Virgil v. State, 63 Miss. 319, decides this question.

The sixteenth assignment of error refers to the action of the court in permitting counsel for the state to comment on the failure of the defendant to produce his brother and father in his behalf and we submit that this was fatal error. For the facts in this case show it was just as reasonable to believe that the brother or father of appellant did this as that the appellant did it himself, and if they did, or either of them, then they could not have been made to go on the stand and incriminate themselves. It is a long established principle of law that a person cannot be made to incriminate himself and that it has been decided in this state on the failure of the defendant to produce his wife as a witness for him, is reversible error. See Cole v. State, 75 Miss. 144.

If appellant's father and brother were not guilty of anything and were not connected with this crime in any way, then the state had the same opportunity to produce them as witnesses that the appellant had, as it is shown by the facts that both of them were here present at the trial and were accessible to either party and it was as much the duty of the state to have them as it was of the defendant. This being the case it certainly seems unjust to allow the state to make such remarks after it had the opportunity to produce the same witnesses.

C. P. Long, for appellant.

Associate counsel have argued the sixteenth assignment of error, and covered the greater part of our contention in reference to the same, and have cited several cases bearing on the subject.

The question of whether the failure of the party to produce a witness, who is equally as accessible to one side as to the other, is a legitimate subject for comment by counsel, and is a circumstance front which unfavorable presumptions arise against the party so failing to produce such witness, is not settled by a uniform chain of authorities, but different courts look at it and have decided the question in different ways.

In Alabama, in the case of Hutcherson v. The State, 50 So. 1027, the appellant was convicted of murder and testified that a certain doctor named was attending her and that she was sick at the time of the killing. The doctor lived within the state, and it did not appear that he was not as accessible to the prosecution as to the defense, and it was held to be reversible error for the court to allow the state's attorneys to comment upon the failure of the accused to put such doctor on the stand.

In Richburger v. State, 44 So. 780 (latter part of opinion), although the objectionable argument was not excepted to in the lower court, and appellant did not get the benefit thereof, which is a Mississippi case, the court says:

"It is the duty of trial judges to give attention to the argument of counsel in every case, especially in criminal cases, where the temptation to exceed proper limits, seems to be greater, and with or without objection, to exercise the power in them vested, to see that the trial is fair and impartial, and the argument of counsel is a part of the trial," etc.

In the case of Crawford v. State, 112 Ala. 1, the evidence disclosed that one Bowman was an eye-witness of the tragedy under investigation, and was present in court, but was not called to the stand by either side. One of defendant's counsel, in his argument said in substance, that the state had failed to examine this eyewitness to the homicide, who knew more about it than anybody else present at the time of the killing, and that this was a circumstance to be considered by the jury in favor of the defendant. On objections, the court ruled that this argument was improper and exception was duly taken to the ruling of the court. The supreme court in delivering its opinion on appeal said:

"That it was proper to restrain counsel for defendant of the proposed argument to the jury. That it was not legitimate, whether applied to the state or to the defendant; that Bowman was in court, as accessible to one party as to the other, and all that could possibly be said, that either party did not deem it necessary to place him on the stand, adding his testimony to that which had been adduced."

In State v. Cousins, 58 Ia. 250; State v. Rosier, 55 Ia. 517, it is held that whatever inference may be drawn against a party by reason of his failure to produce evidence in "his control," are liable only on the theory that he willfully withheld such evidence.

In the dissenting opinion of Chief Justice Simmons in the case of Western Railroad Co. v. Morrison, 66 Am. St. Rep. 180, can be found a collection of a good many authorities on this question.

Carl Fox, assistant attorney-general, for appellee.

It is contended that the court erred in refusing an instruction that the jury could find the defendant guilty of murder because, it is said, that the deceased was engaged in the commission of a misdemeanor at the time he was killed, and under section 1237, Code 1906, the person who killed him could not have been guilty of anything more than manslaughter. It is said by counsel for appellant that the question whether or not section 1237 of the Code was applicable, was purely a question of law; that if it was not applicable, then the defendant, if he was the man who fired the shot, was guilty of a cold-blooded murder. Counsel rely on the case of Long v....