Lamar v. State

• Decision Date: 07 November 1887
• Citation: 3 So. 78,65 Miss. 93
• Court: Mississippi Supreme Court
• Parties: WALTER F. LAMAR v. THE STATE

3 So. 78

65 Miss. 93

WALTER F. LAMAR v. THE STATE

Supreme Court of Mississippi

November 7, 1887

APPEAL from the Circuit Court of Hinds County, HON. T. J. WHARTON Judge.

Walter F. Lamar was indicted in Yazoo county for "assault and battery with intent to kill and murder." He was tried and convicted, and appealed to this court, where the cause was reversed and remanded. He was then granted a change of venue to Hinds county, where he was again tried and convicted. The evidence given on the first trial was taken down in writing, and on the second trial certain parts of the testimony of one Gilruth, given on the first trial, was read to the jury by agreement. The district attorney, in his argument, read parts of the testimony of this witness, which had not before been read to the jury and were not in evidence, The further facts necessary to be known are stated in the opinion of the court. The defendant was again convicted, and again appealed to this court.

Judgment affirmed.

W. H Luse, J. D. Everett and J. M. Shelton, for the appellant.

We submit that a great wrong was done appellant by permitting the use of language by counsel for the State, for which the fact that one of appellant's counsel had taken a wide latitude in his argument, no matter how wide it was, could not afford the least excuse in the world.

If appellant's counsel had taken a latitude which, in the opinion of the court, was too wide, the court ought to have confined him within bounds, and not have attempted to right the wrong committed by permitting him to go beyond bounds (if, in fact, he did go beyond bounds) by permitting counsel for the State to go beyond bounds.

In this connection we refer to the case of Martin v. State, 63 Miss. 505, and authorities cited in the opinion of the court.

The failure of the court to prevent the district attorney from reading, in his argument to the jury, which was the final argument, certain testimony delivered on the former trial but which it was agreed should not be read as evidence on the trial now in question, and which, in point of fact, was not so read, after having directed him, on objection urged by appellant's counsel, three, several times not to read the same until it had been settled by the stenographer, by examination of his notes of the testimony in the case, whether or not it had been read to the jury as evidence, was a serious error, for which we ask a reversal.

In Smith v. People, 5 American Criminal Reports, 615, the Supreme Court of Colorado made some comments upon a like proceeding on the part of a prosecuting attorney, to which we invite the consideration of this court.

The judgment in that case was reversed partly because of the conduct of the prosecuting attorney.

We submit that the conduct of the district attorney in this case, now in question, not only may have influenced, but, in all liklihood, did influence the jury against the apellant, and most improperly.

W. H. Luse, on the same side.

It will not do to say that the forbidden testimony was immaterial, even if it were so; for if counsel, through mistake or zeal, break over the constitutional barriers and range outside the record, on what legal safeguard can the prisoner rely for a fair and impartial jury? The case of Martin v. State, 63 Miss. and Lamar v. State, 64 Miss. are leading cases among the very few decisions on this point; and, while it is impossible to limit the range of argument with precision, it is equally important to hold the limit with certainty and firmness, as is often illustrated since the days of Paul before Agrippa. If the prisoner is tried by the law, let him be judged by the law.

T. M. Miller, Attorney-General, for the State, submitted the case upon an oral argument.

OPINION

COOPER, C. J.

In a case where the...