Clark v. State, 46771
| Decision Date | 03 April 1972 |
| Docket Number | No. 46771,46771 |
| Citation | 260 So.2d 445 |
| Parties | W. T. CLARK v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Stanfield & Wallace, Jackson, for appellant.
A. F. Summer, Atty. Gen., by John Kinard, Sp. Asst. Atty. Gen., Jackson, for appellee.
Appellant W. T. Clark was indicted, tried and convicted in the Circuit Court of Rankin County on a charge of grand larceny. He was sentenced to serve a term of five years in the State Penitentiary. From this conviction and sentence he appeals. We reverse and remand for a new trial.
Since this case must be reversed for a new trial, we will not detail the evidence. It is sufficient to say that on March 24, 1971, a sum of money in excess of $600 was taken from McRae Mercantile Company in Value, Mississippi. No one saw appellant take the money, and the evidence that he did take it was wholly circumstantial.
Appellant first urges that the trial court was in error in refusing to grant his motion for a directed verdict of not guilty because of the failure of the state to prove the ownership of the money as charged in the indictment. The indictment charged that the money was the property of Doris Ann McRae and Duncan McRae. Appellant contends that the burden was upon the state to prove the ownership of the money as charged beyond a reasonable doubt. This is undoubtedly true, but after the review of the evidence in this case, we are of the opinion that the evidence and the reasonable inferences that could be drawn therefrom was sufficient to withstand a motion for a directed verdict.
Appellant next urges that the trial court was in error in overruling his motion for a mistrial because in the final argument to the jury the district attorney commented upon the failure of the accused to testify. The record reflects that appellant did not testify and offered no witnesses in his behalf. The record and the special bill of exceptions reflect that during the course of the final argument the district attorney stated:
We have shown you by the evidence, uncontroverted testimony, that he is the only one who could have taken the money. There are good reasons why we should not speculate, and you should base your decision on the law and the evidence, if they had any evidence; otherwise they could have presented it. (Emphasis added)
While making this statement the district attorney turned towards the defendant and pointed to him. This argument as we view it, amounted to a comment of the failure of the accused to testify in his own behalf. Section 1691, Mississippi Code 1942 Annotated (1956), provides that the failure of the accused to testify shall not operate to his prejudice or be commented on by counsel. We have held in many cases that any reference to the failure of the defendant to testify constitutes reversible error when proper objection is made and the proper procedure is followed to preserve the error. See Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946), and the cases cited therein. There are a few cases where the comments are of the character here under consideration in which we have held that the comments did not amount to reversible error. In those cases there was either an eye witness other than the accused available to him and who was not placed on the stand, or the guilt of the accused was so manifest that no fair jury could have returned a verdict other than guilty. Chatman v. State, 244 Miss. 659, 145 So.2d 707 (1962). There were no eye witnesses to the crime charged her, and appellant's guilt was not manifest. We are of the opinion that under the...
To continue reading
Request your trial
-
Livingston v. State, 57198
...(1976), commenting on a defendant's failure to testify violates "an elementary and long established principle of law." See: Clark v. State, 260 So.2d 445 (Miss.1972); Hines v. State, 339 So.2d 56 (Miss.1976); Peterson v. State, 357 So.2d 113 (Miss.1978); and Wilson v. State, 433 So.2d 1142 ......
-
West v. State
...(1976), commenting on a defendant's failure to testify violates "an elementary and long established principle of law." See: Clark v. State, 260 So.2d 445 (Miss.1972); Hines v. State, 339 So.2d 56 (Miss.1976); Peterson v. State, 357 So.2d (Miss.1978); and Wilson v. State, 433 So.2d 1142 (Mis......
-
Wright v. State, 2005-KA-01729-SCT.
...State, 433 So.2d 1142 (Miss.1983); Peterson v. State, 357 So.2d 113 (Miss.1978); Hines v. State, 339 So.2d 56 (Miss.1976); Clark v. State, 260 So.2d 445 (Miss.1972); Chatman v. State, 244 Miss. 659, 145 So.2d 707 (1962); Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946); Winchester v. St......
-
Griffin v. State
...State, 433 So.2d 1142 (Miss.1983); Peterson v. State, 357 So.2d 113 (Miss.1978); Brown v. State, 340 So.2d 718 (Miss.1976); Clark v. State, 260 So.2d 445 (Miss.1972); Prince v. State, 93 Miss. 263, 46 So. 537 (1908); Smith v. State, 87 Miss. 627, 40 So. 229 (Miss.1906); Hoff v. State, 83 Mi......