Calloway v. State

• Decision Date: 16 December 1929
• Docket Number: 28356
• Citation: 155 Miss. 706,125 So. 109
• Court: Mississippi Supreme Court
• Parties: CALLOWAY et al. v. STATE

125 So. 109

155 Miss. 706

CALLOWAY et al. v. STATE

No. 28356

Supreme Court of Mississippi

December 16, 1929

Division A

CRIMINAL LAW. Instruction, if defendant's good character with other evidence raised probability of his innocence, there was reasonable doubt of guilt, held properly refused (Hemingway's Code 1927, section 591).

In prosecution for manufacturing whisky, instruction in effect that, if defendant's good character along with other evidence in case raised probability of his innocence, there was reasonable doubt of his guilt, held properly refused under Code 1906, section 793, Hemingway's Code 1927 section 591, prohibiting trial judge from summing up or commenting on testimony or from charging jury on weight of evidence, where court instructed jury that defendant's guilt must be established beyond reasonable doubt by proof in case.

HON. C P. LONG, Judge.

APPEAL from circuit court of Prentiss county HON. C. P. LONG, Judge.

John Calloway and another were convicted of manufacturing whisky and they appeal. Affirmed.

See, also, 121 So. 292.

Affirmed.

Friday & Windham, of Booneville, for appellants.

Good character may have such probative force or effect as not only to create a reasonable doubt as to the accused's guilt, but also to lead the jury to believe the testimony adduced against the accused is not true, or is improbable, or to outweigh or overcome evidence of the most positive character, and create a conviction of innocence. To say that the jury in their deliberation and judgment may not give such effect to it is to deny to an extent the value and benefit of good character as evidence.

Shropshire v. State, 8 S.E. 450; U. S. v. Gunnell, 5 McKey (D. C.) 198; State v. Brown, Annotated Cases, 1913E, p. 20; Maston v. State, 83 Miss. 647; Coleman v. State, 59 Miss. 484; Upton v. State, 108 So. 287; Hussey v. State, 109 So. 871; Cummins v. State, 110 So. 206.

Forrest B. Jackson, Assistant Attorney-General, for the state.

An assignment not having been argued is waived by the appellant.

Pope v. State, 67 So. 177, 108 Miss. 706; Davis v. State, 67 So. 662, 67 So. 178, 108 Miss. 710; Chase v. State, 112 So. 785, 147 Miss. 694.

Evidence of the good character of the accused should go to the jury as any other fact, and its influence in the determination of the case should be left to the jury without any intimation from the court of its influence. The court should not tell the jury that satisfactory evidence of the good character of the accused is or is not sufficient to raise a reasonable doubt of his guilt.

Coleman v. State, 59 Miss. 490; Wesley v. State, 37 Miss. 327; Cole v. State, 4 So. 577; Hammond v. State, 21 So. 149, 74 Miss. 214; Powers v. State, 21 So. 657, 74 Miss. 777; Bowen v. State, 117 So. 204.

OPINION

McGowen, J.

On an indictment charging appellants with manufacturing whisky, they were tried, convicted, and sentenced in the court below to serve a term of two years in the state penitentiary, from which conviction and sentence they appeal to this court.

It is unnecessary to detail the facts in this case, as we are of opinion that there is no reversible error in this record and that the evidence is sufficient to uphold the verdict and judgment.

There is one assignment of error, however, which provokes comment from the court. The appellant Calloway offered several witnesses who testified that his general reputation as a law-abiding citizen in the community in which he lived was good, and the following instruction was requested by him: "The court instructs the jury for the defendant, John Calloway, that you should take into consideration, along with the other evidence, the reputation of the defendant as a law-abiding citizen in the community in which he resides, if such is proven, and if this testimony along with the other testimony in the case raises a reasonable probability that the defendant John Calloway is innocent then you should find him not guilty." On which the presiding judge made the following notation: "Refused, because it picks out one certain phase of the evidence and asks the court to instruct on it alone."

Section 591, Hemingway's Code 1927, section 793, Code 1906, prohibits a trial judge from summing up or commenting on the testimony, or from charging the jury on the weight of the evidence.

In Potera v. Brookhaven, 95 Miss. 774, 49 So. 617, this court held that instructions should not be argumentative, should not concern the weight of the evidence, nor give undue prominence thereto.

In the case of Coleman v. State, 59 Miss. 484, an instruction for the state was before the court in this language: "Evidence of good character . . . 'is insufficient to raise a reasonable doubt when, excluding such evidence, the case is otherwise made out against the accused.'" The court said this instruction was objectionable as being on the weight of the evidence, and Judge CALHOON further said therein: "Evidence of the good character of the accused should go to the jury as any other fact, and its influence in the determination of the case should be left to the jury without any intimation from the court of its value. (Italics ours.) The court should not tell the jury that satisfactory evidence of the good character of the accused is or is not sufficient to raise a reasonable doubt of his guilt. The jury is to have this evidence as an aid to estimate the other evidence, and by the light of the whole to reach a verdict." This language was quoted with approval in the case of Maston v. State, 83 Miss. 647, 36 So. 70.

In Lewis v. State, 93 Miss. 697, 47 So 467, the defendant was refused this instruction: "The court instructs the jury that good character may in itself create a reasonable doubt, when...