Guest v. State

• Citation: 130 So. 908,158 Miss. 588
• Decision Date: 24 November 1930
• Docket Number: 28881
• Court: United States State Supreme Court of Mississippi
• Parties: GUEST v. STATE

130 So. 908

158 Miss. 588

GUEST v. STATE

No. 28881

Supreme Court of Mississippi

November 24, 1930

APPEAL from circuit court of Bolivar county, Second district, HON W. A. ALCORN, JR., Judge.

(In Banc.)

1 HOMICIDE.

In murder prosecution, defendant's guilt held for jury.

2. CRIMINAL LAW.

In murder prosecution, district attorney's argument, to effect that one of the two persons who knew what occurred was on trial, and adding, "What was his evidence?" held comment on accused's failure to testify requiring reversal (Hemingway's Code 1927, section 1651).

3. CRIMINAL LAW.

Accused's counsel's argument that no one knew what occurred between deceased and accused at time of shooting did not warrant prosecutor's reference to defendant's silence.

4. CRIMINAL LAW.

Accused must ask for mistrial in order to have new trial only where objection to prejudicial argument is sustained.

5. CRIMINAL LAW.

Where court held that state counsel's argument was proper, its action is subject to review, though accused did not ask for mistrial.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, Second district, HON W. A. ALCORN, JR., Judge.

Henry Guest was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

J. C. Roberts, of Cleveland, and Walter Dent, of Cleveland, for appellant.

The district attorney in his closing argument before the jury, made the following remarks:

"Counsel calls on us to state to you what happened out there. He says nobody knows what took place out there between those two men. I say to you there were two who knew. Death has sealed the lips of one of them and the other is here, sitting here at the bar of this court and his country and here on trial. Now, then let us see. That man who knew best, that man only who lived and who knew this, and who had fresh on his memory what occurred--what was his evidence, in actions which speak louder than words, with his hands dripping with human blood?"

These remarks were promptly objected to and a special bill of exceptions tendered. Because of these remarks of the district attorney, this case should be reversed.

Smith v. State, 87 Miss. 627, 40 So. 229; Gurley v. State, 101 Miss. 190; Yarbrough v. State, 70 Miss. 593; Harris v. State, 96 Miss. 379; Harwell v. State, 93 So. 366.

Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.

The remarks made by the district attorney do not constitute reversible error for three reasons.

(1) As they are not a comment on the failure of the accused to testify, (2) as the argument complained of was invited by the appellant's statement along the same line, and therefore the appellant cannot complain that the district attorney answered this argument, (3) as counsel made no request for a mistrial but took advantage of a possible acquittal and then raised the question.

Ransom v. State (Miss.), 115 So. 209.

As appellant made no motion for a mistrial but took advantage of a possible acquittal without making such a motion, the question cannot now be raised.

Walton v. State, 147 Miss. 17; Hughey v. State (Miss.), 106 So. 361; Shows v. State, 103 Miss. 640; Holmes v. State, 151 Miss. 702; Pittman v. State, 147 Miss. 593, 113 So. 348.

OPINION

McGowen, J.

On an indictment charging murder in the killing of Abraham Tucker, the appellant was tried and convicted by a jury, and sentenced to be hanged by the court; and from said sentence he appeals to this court.

Some time in March, 1930, a negro festival was held at night at Macedonia church, on Josephine plantation, in Bolivar county. A large crowd of negroes were present, but in the early part of the evening Henry Guest was not there. About nine o'clock Myri Burnett, who was jointly indicted with Henry, told a witness to go down to Henry's house and tell Henry to come to the church and bring his and Myri's pistols; that he (Myri) had seen the fellow that stole Henry's pistol; but the witness did not deliver the message. Later Henry came to the church, asking for Tucker, the deceased; the latter went around the corner of the church to where the appellant was, and as they were standing six or seven feet apart, facing each other, two shots were fired by Henry at a time when, according to the witness, "Henry was right up on Abraham;" that the latter was not doing anything, his hands were down by his sides, and he saw nothing in them. Immediately on the firing of these two shots, Tucker, the deceased, walked back to the steps of the church, ascended them, shook his fist in the direction of Henry Guest, and said, "I am going to get you if I live," and started to enter the church, whereupon three more shots were fired. At the time of the firing of these three shots, Myri Burnett came out on the steps, and just as they were being fired said, "Look out Henry, you are going to shoot me." It appears that Tucker was then and there shot. Tucker walked into the church, and a shot or shots were fired inside, but a witness for the state says that some one ran to the window and discharged a pistol shot from inside through the window, outside the building. Tucker staggered and fell, saying to a witness, "Henry shot me." According to witnesses, the deceased was unarmed. The wound was in his head on the right-hand side, just beneath his collar bone, passing along downward, and the bullet was taken out by the doctor just under the shoulder blade.

No witness testified as to any conversation between the appellant and the deceased. The appellant did not testify, but offered one witness, a white man, who was standing in front of the church at the time of the shooting, who said the light of an automobile was turned on the church steps, making it possible for him to see. His testimony was to the effect that the first shot was fired while the deceased was standing on the steps, and just after he had made a threat against someone, saying, "You I'll get you," and thrust his hand in his bosom; thereupon two or three shots were fired, "and someone came out who must have got shot, because he 'hollered;' and then there was another shot fired which must have hit this fellow (speaking of deceased), because he whirled and ran into the church."

During the course of the argument by the district attorney, he said, in closing the case:

"Counsel calls upon us to state to you what happened out there. He says, nobody knows what took place out there between these two men. I say to you, there were two who knew. Death has sealed the lips of one of them, and the other is here sitting here at the bar of this court and his country, and here on trial. Now, let us see: That man who knew best, that man only who lived and who knew this, and who had fresh on his memory what occurred--what was his evidence, in actions which speak louder than words, with his hands dripping with human blood?

"MR. DENT: To the remarks of the district attorney, the defendant excepts, and tenders herewith a special bill of exceptions, because it comments on the failure of the defendant to testify, which we feel the exception is well taken. Now, then, I can take the special bill of exceptions, and your Honor has signed it.

"MR. SMITH: I would like to finish what I was going to say. I would like to have the whole statement there I think, in fairness to the state, the whole statement should be in there. I don't think I should be interrupted on this particular point. I think I ought to be permitted to develop the whole point. Now, then, I say to you, with his hands dripping with...