Cole v. State

• Decision Date: 29 March 1897
• Citation: 21 So. 706,75 Miss. 142
• Court: Mississippi Supreme Court
• Parties: Z. C. COLE v. STATE OF MISSISSIPPI

21 So. 706

75 Miss. 142

Z. C. COLE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 29, 1897

March 1897

FROM the circuit court of Lowndes county HON. NEWMAN CAYCE, Judge.

The appellant was indicted and tried for arson. On the trial the defendant, as a witness in his own behalf, swore to an alibi but did not introduce his wife as a witness. The district attorney, both in his opening and concluding argument to the jury, commented upon the failure of the wife to testify in her husband's behalf, to prove the alibi, and drew inferences unfavorable to the accused from the failure, and defendant was convicted of an attempt to commit arson, and appealed.

Reversed.

Z. P Landrum, for appellant.

There can be no doubt that it is error for the district attorney to comment upon the failure of a defendant to introduce his wife as a witness in his behalf in a criminal case. Johnson v State, 63 Miss. 313. As said by Arnold, justice, in the case cited: "The fact that she [a wife] was not called was not a legitimate subject of discussion by counsel or of consideration by the jury. It is true that, generally, unfavorable inferences may be indulged 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." Knowles v. People, 15 Mich. 408. But it is said that no objection in the court below was made to the arguments. While the rule that a defendant should object at the time to any irregularity in the course of a trial may do very well in civil cases, it certainly has no application in a criminal case. Suppose the defendant had been a deaf man, and was not represented by counsel. The defendant is entitled to a fair and impartial trial, and it is the duty of the court to see that he gets it, and it is absurd to say that he has not had a fair and impartial trial because he himself does not secure it.

S. M. and W. C. Meek, on the same side.

It was none of the district attorney's business whether the defendant called his wife or not. Prosecuting officers-- we should say persecuting officers-- should be taught that defendants in criminal cases have some rights, at least, which even they must respect, and not walk and talk before the jury to and fro like they were monarchs of all they surveyed. Johnson v. State, 63 Miss. 313; 61 Miss. 717.

Wiley N. Nash, attorney-general, for the appellee.

I shall not discuss the assignment of error predicated of the district attorney's argument, but leave the matter to the better judgment of the court, with a single remark. The defendant's counsel failed to call the attention of the court to the action of the district attorney, who doubtless for the moment, had forgotten the statute upon the subject and the decisions of...