Jacobs v. State

• Decision Date: 10 February 1913
• Docket Number: 16,192
• Citation: 103 Miss. 622,60 So. 723
• Court: Mississippi Supreme Court
• Parties: NATHAN JACOBS v. STATE

60 So. 723

103 Miss. 622

NATHAN JACOBS v. STATE

No. 16,192

Supreme Court of Mississippi

February 10, 1913

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

Nathan Jacobs was convicted of crime and appeals.

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

Affirmed.

Jas. F Noble, for appellant.

I will discuss that part of the district attorney's argument contained in the special bill of exceptions, relative to what he said about penitentiaries. He said he was becoming wedded to capital punishment; that he would never accept another life sentence where the evidence shows the man is guilty of murder as this does. I say this was improper. Nothing about anything of this kind was in evidence; and indeed the court would never have permitted such to have been placed in evidence. This was highly improper. The jury had nothing to do with what the learned district attorney had become wedded to. That was his business, and was none of theirs. It is the jury's business to arrive at their verdict from a consideration of the evidence in the case; upon a consideration of the evidence, guided by the instructions of the court, they are to arrive at their verdict; upon this and this alone, have they a right to base their verdict. Such argument as this is calculated to confuse them and mislead them; surely it is improper, and therefore should not be permitted. No one can know just what effect such an armument will have. And in a case like this nothing should be permitted that would tend to work any unfairness upon the defendant, because the only testimony produced against him is in the alleged confessions. They say the confessions were perfectly free and voluntary; if they were, then the defendant was honest enough to tell the truth, and so, for this reason, and because this is the only way a conviction could ever have been gotten, he should have been treated as fairly as possible, and not prejudiced by such an argument.

And there will be found in the latter part of the bill of exceptions the following language of the district attorney "I am getting tired of penitentiaries. There is no use to send a man there. You can send a man there for life, and he will only stay there for a short time and be pardoned; a dead man can't get pardoned." I say this is wrong and improper. It called into question the pardoning power of the state. It was an attack upon the pardoning power. He had no right to make this manner of argument. He as good as told the jury that the defendant would not be sufficiently punished if sent to the state prison. He said, "You send a man there and he stays a short time and is pardoned." I presume he meant if this man should be sent there, he would soon be pardoned. The district attorney spoke of his experience with penitentiaries. The jury has no right to take into consideration that some day a prisoner will, or may be, pardoned. The law gives the governor the right to pardon prisoners. The jury has no right to presume that the governor will commit a wrong by pardoning some person who should not be pardoned. It is to be presumed that he will remain in the penitentiary all his life; and that he will be pardoned, or that he will not be pardoned, has absolutely no place with the jury. Our laws were enacted by our lawmakers, elected by us, and they made the law giving the governor the right to pardon people convicted of crime. This has been the law for a long time. And when the jury fix a man's punishment in the penitentiary for life, so far as they know, or are concerned, it means that he will remain there the balance of his life. Also the district attorney has no right to say how long a man sent to the penitentiary will stay there. When a pardon is granted, the governor has the law on his side; and it is to be presumed that if a pardon is granted, it is done because it is right. And so I say this argument was very wrong and prejudicial to the defendant. Reference is made to the following decisions: Windham v. State, 91 Miss. 845; State v. High, 47 La. 878; Clinton v. State, 43 So. 312.

Geo. H. Ethridge, assistant attorney-general, for the state.

The questions of arguments of counsel are frequently presented in the courts of this state and other states, and it has been well settled in many cases, that a case will not be reversed even where the statement was error by the district attorney or other prosecuting office, if the case shows guilt. In the case of Brown v. State, 81 Miss. 143, 33 So. 170, the prosecuting attorney used the following language:

"If you are going to do like the jury did last week and turn everbody loose I try, regardless of evidence, why, I had just as well close up shop? If you are going to believe the defendant, this entire court is a farce, and he never denied his guilt until he got counsel."

It was held that while this statement was erroneous and improper, it could not cause a...