Evans v. State

• Decision Date: 13 February 1911
• Docket Number: 14867
• Citation: 54 So. 154,98 Miss. 697
• Court: Mississippi Supreme Court
• Parties: LUCY EVANS v. STATE

54 So. 154

98 Miss. 697

LUCY EVANS v. STATE

No. 14867

Supreme Court of Mississippi

February 13, 1911

October, 1910

APPEAL from the circuit court of Lincoln county, HON. D. M. MILLER Judge.

Lucy Evans was convicted of unlawful retaining and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

M McCullough, for appellant.

The next error of the trial court was his refusal to stop the district attorney when he argued before the jury that the appellant ought to be convicted because she was afraid of the proposed jurors who lived near Maxwell's home and were his neighbors. If there were any evidence offered through any witness that such an allegation as made by the attorney-general was true, if it could be made competent then this assignment would not be in place. But the record is silent as to the truthfulness of the statement of the district attorney, except from his own statement made on the hearing of the motion for a new trial.

If it is true that the excused jurors said they were neighbors of Maxwell and knew him well, that has no bearing one way or the other as to the truthfulness or untruthfulness of the witness Maxwell and cannot possibly have anything to do with the guilt or innocence of the defendant. The law grants to the defendant the right to excuse these two jurors peremptorily and without assigning any cause, if she so desired, and it is highly improper and prejudicial to the defendant to have the district attorney in his closing argument to prejudice the minds of the jury by arguing that the defendant was unwilling to be tried by neighbors of the witness Maxwell. The district attorney in his explanation stated that he used this kind of argument because one of defendant's counsel had referred to the reliability of the witness Maxwell and that he was only showing to the jury that his neighbors had confidence in him. The district attorney's purpose was very good, but his method is very bad.

The district attorney says that he made the argument deliberately and that he does not apologize for the remarks he made. That may be a correct position, but isn't it true that he went out of the record of the evidence to get his argument and isn't that argument calculated to materially prejudice the minds of the jury sworn to pass on the credibility of a detective witness?

The district attorney said: "Lanier was afraid of the men who knew Maxwell, and didn't want them to try this case, therefore, he excused two of the jury for that reason." "Lanier," as used, referred to the counsel for this appellant.

There was absolutely nothing in the record or properly before the jury as evidence to sustain such remarks. The empanelling of the jury, or whatever occurs in empanelling the jury to try one charged with crime, is not a proper matter for argument before the jury by the district attorney. This subject might be considered less important were it not a fact that Maxwell was the only state witness and showed by his own statements to have been a paid detective witness, on the credibility of whose testimony the jury was sworn to pass. In this state of case the remarks of the district attorney were highly prejudicial and absolutely unsupported by the law or the record.

It is true that counsel for the defendant objected to the attorney's argument in the presence of the jury, but the court declined to stop him and instruct the jury not to consider the statements of the district attorney. Some importance is attempted to be made, as will be seen from the testimony taken on the motion for a new trial, of the fact that the defendant's attorney spoke to the court in a rather low tone of voice, and that probably the jury never heard him...