Comings v. State

• Decision Date: 23 May 1932
• Docket Number: 29656
• Citation: 163 Miss. 442,142 So. 19
• Court: Mississippi Supreme Court
• Parties: COMINGS v. STATE

142 So. 19

163 Miss. 442

COMINGS v. STATE

No. 29656

Supreme Court of Mississippi

May 23, 1932

APPEAL from circuit court of Panola county.

HON GREEK L. RICE, Judge.

Proceeding by the State of Mississippi against Alfred Comings. From judgment for the State, defendant appeals. Affirmed.

Affirmed.

Ben Wilkes, of Greenville, for appellant.

There is no contention on the part of the state that the defendant was present actually participating in the robbery, the contention being that Comings was an accessory before the fact, and this the state attempted to prove by circumstantial evidence.

It is the contention of the defendant that any evidence as to any plea of guilty in the committal court should have been excluded by the trial court, for the reason that immediately preceding the convening of this committal court, the appellant, Winters, and Stovers were brutally beaten by members of the Memphis Police Department into whose hands they had been delivered by the Panola county officers, and that if any plea of guilty was entered, it was not freely and voluntarily done.

Such testimony should not be admitted unless the court is satisfied beyond all reasonable doubt that the confession of plea was free and voluntary.

Hathorn v. State, 138 Miss. 11; Whip v. State, 143 Miss 757; Banks v. State, 93 Miss. 700; Johnson v. State, 107 Miss. 196; Fisher v. State, 145 Miss. 116.

The special bill of exceptions shows that the district attorney said:

"Gentlemen of the jury, I have been your district attorney for three years, and in this case my motives have been impunged for the first time, but I'm going to tell this thing just as it is. These two boys Stovers and Winters, confessed to this crime to the officers and implicated Comings, and said he furnished the brains for the job.

"Yes, I'm going to tell it just like it was. They confessed and implicated Comings up to the time they were seen by this Greenville lawyer." (Referring to Ben Wilkes, counsel for defendant.) Oh yes, you vent your spleen on me, but I'm going to tell it like it is, regardless of how many lawyers come from Vicksburg or Greenville."

This argument was wholly unwarranted, highly improper, and very prejudicial. There was nothing in the evidence upon which the statements could be based.

It was a direct statement, not of conclusions from the evidence, but of facts that were not in evidence.

There are numerous decisions of our court reversing convictions because of improper arguments by prosecuting attorneys.

Martin v. State, 63 Miss. 507; Kelly v. State, 113 Miss. 850; De Jean et al. v. State, 118 Miss. 146; Hampton v. State, 88 Miss. 257; Mathews v. State, 148 Miss. 696, 114 So. 816; Raines v. State, 81 Miss. 489.

Litigants have a constitutional right to appear and be represented by counsel, and the fullest liberty and range of argument should be allowed; but within no allowable attitude is it permissible to state facts and comment on them in argument--which are not before the jury in testimony. Such conduct is not protected by the privilege of counsel and the fullest liberty of speech.

Perkins v. Guy, 55 Miss. 153.

W. A. Shipman, assistant attorney-general, for the state.

Hawthorn v. State, 138 Miss. 11, holds that before a confession shall be received in evidence, where it is objected to, it must be shown that it was free and voluntary, and, where objection is made the proof that it was free and voluntary should precede the admission of the confession. I submit that every requirement of the ruling laid down in that case was strictly adhered to in the instant case.

The preliminary evidence before the court with the jury retired, discloses the fact that the appellant made no confession at any time before he was arraigned. To the contrary, he strenuously maintained his innocence; he denied any previous knowledge of or complicity in the robbery; and his plea of guilty came as a surprise to the district attorney and others--so much so in fact that the district attorney repeated the question in order that all possibility of a misunderstanding by the appellant should be removed, and again the appellant said guilty.

Defendant's plea of guilty at the preliminary examination, the corpus delicti being proved, justified the admission thereof in evidence on the trial of the accused.

Carter v. State, 24 So. 307 (N. O. R.).

The court, if required, must determine out of the hearing of the jury whether the alleged confession be admissible or not; that is, whether it was freely and voluntarily made; that it is within the exclusive province of the court to decide this question, and that it is not a question for the jury, even though the evidence on such point be conflicting. That if the court be satisfied after hearing all the testimony pertinent to the inquiry, that such confession is admissible, it should go to the jury; but if there is a reasonable doubt against it being free and voluntary, it should be excluded; that after it is admitted in evidence, the jury may deal with it as any other testimony, attaching to it whatever credence or weight may seem proper to them under the circumstances that if the jury believe the confession to be untrue, no matter from what cause, they should disregard it.

Ellis v. State, 65 Miss. 44; Williams v. State, 72 Miss. 117; Hawthorn v. State, 138 Miss. 11; Tyler v. State, 159 Miss. 223.

Declarations by an accused, which constitute voluntary confessions, are admissible in evidence.

Richburger v. State, 90 Miss. 806, 44 So. 772; Pringle v. State, 108 Miss. 802, 57 So. 455.

There can be no question that the plea of guilty was made freely and voluntarily by the appellant.

Sykes v. State, 157 Miss. 600, 128 So. 753.

It does not appear in this instance that the appellant was, or could have been, prejudiced by the remarks of the prosecuting attorney, as reflected by the special bill of exceptions.

The district attorney's language was not without a basis in the evidence, and he was entitled to draw his inference therefrom.

Within the limits of the testimony the argument of counsel is and should be free, but that freedom does not extend either to the statement or the assumption of facts, or to commenting upon facts not in evidence to the prejudice of the adverse party.

Perkins v. Guy, 55 Miss. 153; Cavanah v. State, 56 Miss. 299; Cross v. State, 68 Ala. 476; Wolfe v. Minnis, 74 Ala. 386; State v. Smith, 75 M. C. 306; Proffatt on Jury Trials, Section 250; Martin v. State, 63 Miss. 505.

It is respectfully submitted that, tested by the foregoing rule, it is competent for the district attorney to draw the inference he did in the premises.

OPINION

Griffith, J.

Two errors appear on the record of the trial of this case. The first was the erroneous admission of evidence that appellant entered a plea of guilty in his preliminary or committal trial, when the facts show that the said plea or confession was not voluntary in that measure required by law; and, second, in the argument by the district attorney wherein he testified in the guise of argument to the effect that appellant's confederates had confessed to appellant's connection with the crime, when there was otherwise no such testimony before the jury. Although the first error is palpable, and the district attorney is censurable for the second, we are constrained to the conclusion that on this entire record the verdict and sentence cannot be reversed and set aside, though the errors aforesaid are present; for, upon a careful scrutiny of the evidence in this case, and of every detail thereof, we are of the opinion that the competent evidence so clearly discloses the guilt of appellant, and so completely excludes any other reasonable hypothesis, that no impartial jury, duly mindful of the obligations of their oaths, could fail to convict. House v. State, 121 Miss. 436, 83 So. 611.

Before this court will reverse a cause, it must be satisfied of two facts--namely, that error in favor of appellee was committed in the trial; and, second, that the error was prejudicial to the appellant. Calicoat v. State, 131 Miss. 169, 95 So. 318; Jones v. State, 104 Miss. 871, 61 So. 979, L.R.A. 1918B, 388; Patterson v. State, 106 Miss. 338, 63 So. 667; Lewis v. State, 132 Miss. 200, 96 So. 169; Goins v. State, 155 Miss. 662, 124 So. 785. From what we have said in the foregoing paragraph, it is seen that this case comes well within the rule last above stated, and that the judgment must therefore be affirmed.

Affirmed.

DISSENT BY: Ethridge

Ethridge J., delivered a dissenting opinion.

I am unable to concur in the opinion of the majority. Reluctant as I am to dissent on account of the possibility of the defendant and others indicted with him being connected with organized criminal agencies, I do not think that we can overlook the errors mentioned in the majority opinion without denying the fair trial by an impartial jury guaranteed to all persons accused of crime under section 26 of the Constitution. A fair trial by jury, I think, means a trial on competent evidence, fairly conducted, in which all the rights of the defendant are recognized and safeguarded.

In my opinion the testimony offered by the defendant, if believed would justify an acquittal; while I unhesitatingly say that I would affirm the conviction but for the two errors mentioned--that is, the improper introduction of the plea of guilty at the preliminary trial, and the argument of the district attorney. But the force of a confession by the defendant himself is of such weight--so conclusive to the ordinary mind--that I feel sure that it contributed to the conviction, and perhaps, would of itself have caused a conviction. It is conceded that it was unlawfully admitted in evidence. The evidence...