Finklea v. State

• Decision Date: 11 January 1909
• Court: Mississippi Supreme Court
• Parties: FRANK FINKLEA v. STATE OF MISSISSIPPI

48 So. 1

94 Miss. 777

FRANK FINKLEA v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 11, 1909

March 1909

FROM the circuit court of Noxubee county, HON. ROBERT F. COCHRAN Judge.

Finklea appellant, was indicted, tried for and convicted of burglary and appealed to the supreme court.

On the trial in the court below the prosecuting lawyer called the wife of defendant to the stand as a witness for the state and, in the presence of the jury, caused defendant to object to her as being incompetent to testify. The wife was not permitted to testify.

One Sennett, a witness for the state, was permitted to testify over defendant's objection, that before defendant's arrest witness informed the accused that he was charged with the crime, and that his wife was responsible for the charge and the witness further so testified that there was at the time considerable ill feeling between defendant and his wife.

After conviction the defendant insisted that the course pursued was violative of his rights and entitled him to a new trial.

Defendant also assigned as a ground for a new trial the disallowance of his objections to Sennett's testimony.

Reversed.

J. E. Rives, for appellant.

The prosecution, in its zeal to convict defendant and to prejudice the minds of the jury against him not only entered the name of the wife upon the indictment as a prosecuting witness against himself, but actually brought her into the court room, had her face the jury and take the witness stand against her husband.

Can it be doubted that the effect of this proceeding was to unduly bias the jury against this defendant?

It is said that defendant had a legal right to object to her testifying. So he did, but that did not give the prosecution a right to place defendant in the embarrassing position of being forced to protest before the jury against such an unfair proceeding.

The prosecution could very well afford to have the court sustain an objection after it had in this manner forced upon the minds of the jury that the defendant was conscious of his guilt and afraid to permit his wife to testify against him.

When attention was called to this unlawful proceeding, the trial court only asked "Do you object?" which amounted to telling the jury that "if defendant is afraid for his wife to testify, and feels constrained to object, I will have to sustain the objection on technical grounds."

In order to further unduly inflame the minds of the jury against defendant and to create a false sympathy for his wife, the witness Sennett was asked and permitted to testify as to conversations had with defendant in reference to defendant's wife, and was permitted to testify as to statements made by defendant evincing great anger towards his wife, which had nothing whatever to do with this case.

H. H Brooks, Jr., and George Butler, assistant atto...