Harwell v. State.

• Decision Date: 01 January 1920
• Docket Number: 22317
• Citation: 93 So. 366,129 Miss. 858
• Court: Mississippi Supreme Court
• Parties: Harwell Et Al. v. State.

93 So. 366

129 Miss. 858

Harwell Et Al. v. State.

No. 22317

Supreme Court of Mississippi

January 1, 1920

1. CRIMINAL LAW. Remarks of prosecuting attorney held comment on failure of defendant to testify, and erroneous.

In a criminal case, it is reversible error, under section 1918, Code 1906 (Hemingway's Code, section 1578), for the prosecuting attorney to comment on the failure of an accused to testify. The argument set out in the second syllabus constituted a comment on such failure, within the meaning of the statute.

2. CRIMINAL LAW. Remarks of counsel as to failure of defendant to testify held improper.

In a criminal case, where two persons are jointly indicted for crime and are jointly tried by common counsel, who after the state closes its case retire for consultation, and after such consultation return and introduce one of the defendants, but not the other, it is improper argument for the prosecuting attorney to make the following statement in argument "Gentlemen: I can imagine what took place in that room there, when these defendants went in there with their attorneys, after the state had rested its case. This is about what occurred: The attorneys said to the defendants 'Boys, the state has made out a terribly strong case against you, and it looks like they have got you. What have you to say for yourselves?' Then I imagine the big fellow (referring to Henry Payne, who did not take the stand in his own behalf) said: 'I know of nothing I could say to save myself, so I won't go on' (meaning on the stand). Then I imagine the little fellow, Harwell, said: 'Well, I am a young man, twenty-two years old, I cannot make it no worse, so I will take a shot at it.'"

HON. S F. DAVIS, Judge.

Thomas Harwell and others were convicted of the manufacture of intoxicating liquors, and they appeal. Reversed and remanded.

Norman R. Allen, for appellant.

Now as to the second assignment of error, to-wit that the district attorney's comments upon the failure of Payne to take the stand and testify, there can be no doubt that this was highly prejudicial to Payne and Harwell and in our opinion was the sole and only cause of the verdict of the jury. It has been the rule of this court in a long line of cases, which will be cited at the conclusion of this brief, to hold such remarks as the ones made by the district attorney in this case reversible error and while it may be urged that no objection was made at the time by the defendants, yet we answer that such remarks are so highly improper that the court should stop the district attorney, or failing to do so, when the matter is called to his attention by motion for a new trial this motion should be sustained.

We cite as sustaining our contention that this case should be reversed and remanded, the following cases, and respectfully ask of this honorable court a reversal and remanding of the case: Burt Eiddick v. State, 72 Miss. 1008; Will Sanders v. State, 73 Miss. 444; Bunckley v. State, 77 Miss. 540; William W. Hoff v. State, 83 Miss. 488; Allie Smith v. State, 627; Prince v. State, 263; Allie Smith v. State, 111 Dudley Drane v. State, 92 Miss. 180; William Harris v. State, 96 Miss. 379.

We respectfully submit also that in the case at bar the remarks of the district attorney were just as prejudicial as the remarks of the district attorney in his closing argument in the case of Lewis Fletcher v. State, from the first district of Bolivar county and which case was by this honorable court reversed April 17, 1922. C. E. Dorrah, assistant attorney-general, for the state.

The only assignment of error which, it seems, is entitled to serious consideration is the fist assignment, which is based on the special bill of exceptions, page 13, and which is set out as follows: "Gentlemen: I can imagine what took place in that room there when these defendants went in there with their attorneys after the state had rested its case. This is about what occurred. The attorneys said to the defendants, 'Boys, the state has made out a terribly strong case against you, and it looks like they have got you. What have you got to say for yourselves?' Then I imagine the big fellow (referring to Henry Payne who did not take the stand in his own behalf) said: 'I know nothing I could say to save myself, so I won't go on' (meaning on the stand), then I imagine the little fellow, Harwell, said 'Well, I am a young man, twenty-two years old, I cannot make it no worse, so I will take a shot at it.' "

If this court considers the above as a comment on the defendant's not testifying, then this case should be reversed as to appellant Payne; otherwise it should be affirmed as to both appellants. Appellee does not think that the rights of either appellant were prejudiced in any manner by the remark made by the district attorney, and submits that this case as to both appellants should be affirmed. The testimony in this case is beyond a reasonable doubt sufficient to convict appellants of manufacturing intoxicating liquor.

ETHRIDGE J., delivered the opinion of the court.

The appellants were tried and convicted for the manufacture of intoxicating liquors, and each sentenced to serve a term in the state penitentiary. It appears from the state's evidence that the defendants were arrested in a thicket near the residence of one of them, having a crude still in which was fermented mash, and that a fire had been kindled under the still and was burning at the time of the arrest, and that the bucket under the apparatus contained intoxicating liquors, which had run through a process of distillation, and that such liquor was intoxicating. The state witness did not taste the liquor, and testified that he would not taste it, but testified that it was whisky. It was also in proof for the state that the defendant Harwell confessed to the making of intoxicating liquors in the presence of the defendant Payne. The testimony for the appellants consisted of the testimony of Harwell, for Payne did not testify. Harwell testified that they had not distilled any liquor; that they had just started in the process but that no liquor had been distilled; and also denied the alleged confession attributed to him by the state's witnesses. On the trial of the case, the defendant Payne not having taken the stand, the district attorney in his closing argument made the following remarks:

"Gentlemen I can imagine what took place in that room there, when these defendants went in there with their attorneys, after the state had rested its case. This is about what occurred: The attorneys said to the defendants: 'Boys, the state has made out a terribly strong case against you, and it looks like they have got you. What have you to say for yourselves?' Then I imagine the big fellow (referring to Henry Payne, who did not take the stand in his own behalf) said: 'I know of nothing I could say to save myself, so I won't go on' (meaning on the stand). Then I imagine the little fellow, Harwell, said: 'Well, I am...