Ivey v. State

• Decision Date: 23 July 1901
• Citation: 113 Ga. 1062,39 S.E. 423
• Parties: IVEY . v. STATE.
• Court: Georgia Supreme Court

39 S.E. 423

113 Ga. 1062

IVEY .

v.STATE.

Supreme Court of Georgia.

July 23, 1901.

CRIMINAL LAW—TRIAL—UNFAIR MEANS OF PROSECUTION—ARGUMENTS OF COUNSEL.

1. The state, as accuser in a criminal proceeding, does not seek one of its citizens convicted unless the evidence shows his guilt beyond a reasonable doubt; nor will it permit its prosecuting officer to use any unfair means in the trial, or illegal argument in his address to the jury, to the prejudice of the accused.

2. Where, therefore, a solicitor general, in his address to the jury, uses highly improper language, not authorized by the evidence, or any fair deduction therefrom, and the counsel for the accused objects thereto, and moves the court to declare a mistrial, which the court refuses, and exception is taken to the ruling, this court will reverse the judgment, and grant a new trial, in the interest of justice and of fair and impartial trials.

(Syllabus by the Court.)

Error from superior court, Whitfield county; A. W. Fite, Judge.

Elizabeth Ivey was convicted of selling liquor without a license, and brings error. Reversed.

Jesse A. Glenn and Geo. G. Glenn, for plaintiff in error.

Sam P. Maddox, Sol. Gen., for the State.

SIMMONS, C. J. The record discloses that Mrs. Elizabeth Ivey was tried and convicted for the offense of selling intoxicating liquor without a license. She made a motion for a new trial, which was overruled by the court, and she excepted. From her motion it appears that the solicitor general, in his address to the jury, used the following language: "Gentlemen of the jury, I want you to stand by me, and help me break up this vile den;" and: "Gentlemen of the jury, if you could go over this town, and see the good mothers whose pillows have been wet with tears over their boys who have been intoxicated by the acts of this woman." Defendant's counsel objected to these remarks as being highly improper, and without evidence to authorize them, and asked the court to declare a mistrial on account of them. This motion the court overruled, simply remarking, "Go on with the case, and confine your argument to the facts in the case." The motion for a new trial complains of the refusal of the court to grant a mistrial as asked. We think that the ruling complained of was erroneous. While the state is the accuser in every criminal case, it does not seek the conviction or punishment of any one of its citizens unless the evidence shows beyond a reasonable doubt that he is guilty. An officer is appointed to represent the state in the courts, and it is his duty, when the evidence shows or tends to show the guilt of one on trial for crime, to argue to the jury that the evidence is sufficient to authorize a conviction, and that the jury should return a verdict of guilty. The state, however, will in no case permit its representative to go outside of the evidenceto find a basis for appealing to the sentiments, passions, or prejudices of the jury in order to obtain a conviction. Jesse v. State, 20 Ga. 169. The solicitor general, appointed to represent the interest of the state in the trial of offenders, does not occupy the position of counsel generally. His duty does not require him to insist upon the conviction of the accused unless the evidence is sufficient to authorize it. His office is quasi judicial, and, while it is his duty, if he honestly believes that the evidence shows the guilt of the accused, to insist upon this view before the jury, and to use in his argument all his ability and skill in presenting the case as made by the pleadings and the evidence, still it is under no circumstances his duty either to go outside of the case, and state facts not in evidence, or to appeal to the passions or prejudices of the jury. The motion for new trial shows that the solicitor general stated as facts things to which no witness had testified, —that good mothers had wet their pillows with their tears over their boys who had been intoxicated by the acts of the accused. These remarks were not warranted by the evidence, and were plainly calculated to prejudice the accused. While, as before remarked, the state is the accuser in criminal cases, it will not permit its representatives to use unfair means against the accused pending the trial, or to comment upon facts not put in evidence, or to make remarks calculated to prejudice...