Bufkin v. State

Citation98 So. 455,134 Miss. 116
Decision Date10 December 1923
Docket Number23678
CourtUnited States State Supreme Court of Mississippi
PartiesBUFKIN v. STATE

Division B

Suggestion of Error Overruled Jan. 14, 1924.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

D. P Bufkin was convicted of selling intoxicating liquors, and he appeals. Affirmed.

Judgment affirmed.

Davis & Hill, for appellant.

The witnesses against appellant were Dempsey and Mathews, two vocational students at the Mississippi Normal College, situated in the city of Hattiesburg, who testified that they bought a quart of whisky from appellant at his home in the country, eight or nine miles from Hattiesburg on the night of April 14, 1923. They testified this was the first time they had ever seen appellant to know him.

The appellant was the sole and only witness in his behalf; he denied that he knew the witnesses, or had ever seen them until the case came up in court, and denied positively that he had ever sold whisky to them on the date in question or at any other time. The witnesses themselves were never prosecuted for having whisky in their possession.

The only ground relied on for reversal is the improper argument of the county attorney, shown in the special bill of exceptions. Said improper argument was as follows: "Some member of this jury has asked me how these Normal students knew to go to the defendant's home to buy whisky. I'll answer that, gentlemen--all you have to do is to go down the streets of Hattiesburg and any man will tell you that you can buy whisky from D. P. Bufkin."

Counsel for defendant then and there objected to said argument and moved the court to instruct the jury to disregard said remarks, whereupon the court sustained the objection on the ground that it was improper and instructed the jury to disregard it. Later on in his argument the county attorney made further improper argument as follows: that the jury should believe the state's witnesses in preference to the defendant for the reason that he was more vitally interested in the result of the case than the state's witnesses; that he had a direct, personal interest in the case in that he would be sent to prison if convicted, to all which argument counsel for appellant duly objected and excepted, but no action whatever was taken by the court with reference thereto, except to authorize us to prepare our exception.

This court recently held in a civil case that where it was apparent the improper remarks of counsel must have had its effect on the jury, the case would be reversed for a new trial, notwithstanding the trial judge's admonition to the jury to disregard same. Newman Lumber Company v. Norris, 94 So. 881; See also Harwell v. State, 93 So. 366, citing Martin v. State, 63 Miss. 505. The courts should be more zealous in criminal than in civil cases to see that the accused obtains a fair trial. There was absolutely no testimony whatever in the record to support the improper argument, and we doubt if a case can be produced wherein the rights of one on trial were more viciously and deliberately trampled under foot than in this case.

The improper argument of counsel was so highly prejudicial in both instances as to deny appellant that fair and impartial trial which was guaranteed to him, and constitutes reversible error. Smith v. State, 43 So. 465; Harwell et al. v. State, 93 So. 366.

H. T. Odom, Assistant Attorney-General, for the state.

Counsel hopes to reverse this case because of alleged improper argument on the part of the county prosecuting attorney, as shown by special bill of exceptions appearing at page 10 of the record, which is as follows:

"Special Bill of Exceptions. Be it remembered that the above-styled cause came on for hearing at the April, 1923, term of said court, and on the--day of June, 1923; that the state was represented by Hon. Jeff Collins, district attorney, and Hon. Forrest M. Morris, County Attorney, and that defendant was represented by the firm of Davis and Hill; that Forrest M. Morris made the opening argument to the jury for the state, and made the following statement in his said argument; 'Some member of the jury has asked me how these Normal students knew to go to the defendant's home to buy whisky. I'll answer that, gentlemen--all you have to do is to go down the streets of Hattiesburg and any man will tell you that you can buy whisky from D. P. Bufkin.' Counsel for defendant then and there objected to said argument and moved the court to instruct the jury to disregard said remarks, whereupon the court replied: 'Don't consider that, gentlemen of the jury. That is . . . The objection is sustained.' Whereupon the argument proceeded by the county attorney. The county attorney also argued to the jury that they should believe the state's witnesses in preference to the defendant for the reason that he, the defendant, was more vitally interested in the result of the case than the State's witnesses; that he had a direct personal interest in the case in that he would be sent to prison if convicted, to all of which argument defendant's counsel then and there objected and excepted. And the above having been this day presented to the undersigned judge of the twelfth judicial circuit court district who presided at the trial of said cause as a special bill of exceptions for defendant is this day signed by me as such special bill of exceptions, to become a part of the record on appeal. This June 15, 1923.

"ROBERT S. HALL, Presiding Judge."

The state admits that there is nothing of record that justifies the first statement appearing in the foregoing bill of exceptions. The county attorney should not have made this statement to the jury. But the special bill of exceptions shows that upon objection by the defendant's counsel the court instructed the jury not to consider the remark and sustained the objection. This is all that could have been done by the trial judge, and we must assume that the jury followed the instruction of the court and disregarded the remark. The evidence for the state was amply sufficient to support a conviction, and the defendant would probably have been convicted if no argument had been made by counsel.

On the next proposition complaining as to the prosecuting attorney's comment on the testimony of the defendant, I respectfully submit that this portion of counsel's argument was entirely proper. Of course if appellant had not taken the stand under the cases cited, it would have been fatal error for counsel for the state to have commented on this fact, but after electing to take the stand the defendant's testimony is subject to the same rules as the evidence of any other witness.

OPINION

ETHRIDGE, J.

Appellant was convicted for selling intoxicating liquors, and appeals from said conviction.

The alleged sales were made to Dempsey and Matthews, two vocational students at the Mississippi Normal College, who testified that they bought a quart of whisky from the appellant at his home in the country eight or nine miles from Hattiesburg, Miss., on the night of April 14, 1923; that this was the first time that they had ever seen the appellant to know him.

The appellant was the sole and only witness in his behalf and denied that he knew the witnesses or had ever seen them until the case came up in court. And denied that he ever sold whisky to them.

It appears that during the progress of the trial one of the jurors asked how these Normal students knew to go to the defendant's home to buy whisky. In the argument of the county prosecuting attorney he said:

"Some member of the jury has asked me how these Normal students knew to go to the defendant's home to buy whisky. I'll answer that, gentlemen--all you have to do is to go down the streets of Hattiesburg, and any man will tell you that you can buy whisky from D. P. Bufkin."

The defendant objected and excepted to the said argument, and moved the court to disregard the said remarks, whereupon the court said: "Don't consider that, gentlemen of the jury. The objection is sustained."

It is contended by the appellant that this argument, notwithstanding the instruction of the judge to the jury to disregard it, was reversible error, and cites Newman Lbr. Co. v. Norris, 130 Miss. 751, 94 So. 881; Harwell v. State, 129 Miss. 858, 93 So. 366; and Martin v. State, 63 Miss. 505, 56 Am. Rep. 813.

In the first case (Newman Lbr. Co. v. Norris, 130 Miss. 751, 94 So. 881), the statement of counsel was "Who is the J. J. Newman Lumber Company? It is a corporation. It...

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