Lambert v. State

• Decision Date: 08 April 1946
• Docket Number: 36098.
• Citation: 199 Miss. 790,25 So.2d 477
• Court: Mississippi Supreme Court
• Parties: LAMBERT v. STATE.

25 So.2d 477

199 Miss. 790

LAMBERT v. STATE.

No. 36098.

Supreme Court of Mississippi

April 8, 1946

Earle L. Wingo, of Hattiesburg, for appellant.

Greek L. Rice, Atty. Gen., and R. O. Arrington, Asst. Atty. Gen for appellee.

ROBERDS, Justice.

Lambert was convicted of robbery, sentenced to three years in the state penitentiary, and he appeals.

He did not testify. The district attorney, in his closing argument to the jury, said: 'Where is the testimony that he did not do it? * * * There's no denial.' Counsel for Lambert immediately objected to this argument and moved the court for a mistrial, which the court overruled. Lambert contends that this was a comment by the district attorney upon his failure to testify in his own behalf and was a violation of Section 1691, Code 1942, which reads: 'The accused shall be a competent witness for himself in any prosecution for crime against him; but the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel.'

The following Mississippi cases were reversed and remanded under this statute for remarks made by the State's attorney Yarbrough v. State, 70 Miss. 593, 12 So. 551; Reddick v. State, 72 Miss. 1008, 16 So 490; Sanders v. State, 73 Miss. 444, 18 So. 541; Hoff v. State, 83 Miss. 488, 35 So. 950; Smith v. State, 87 Miss. 627, 40 So. 229; Prince v State, 93 Miss. 263, 46 So. 537; Harris v State, 96 Miss. 379, 50 So. 626; Gurley v. State, 101 Miss. 190, 57 So. 565; Harwell v. State, 129 Miss. 858, 93 So. 366; Winchester v. State, 163 Miss. 462, 142 So. 454.

Some of the statements made in the foregoing cases were clearly comments upon the failure of defendants to testify, so that we will discuss only those of doubtful meaning and application and which are most similar to the remarks made in the case at bar.

In the Reddick case, counsel for the State, referring to an alleged admission made by the accused to one Swayzee, said: 'And he has not denied it.' When counsel for defendant suggested the impropriety of this comment, State's counsel corrected himself and then said: 'It has not been denied.' The trial judge instructed the jury to disregard the remarks. The State's attorney testified on motion for new trial that it was not his intention to refer to the fact that the defendant had not testified. However, this Court said that the intention of the attorney is immaterial; that the test is whether the language can be reasonably construed to be a comment upon the failure of defendant to take the stand. The case was reversed and remanded.

In the Sanders case, the comment was 'There was enough in this evidence to make it incumbent on the defendant to deny it, and he has not done so.' On objection to this, the court reminded counsel he could not refer to the fact that the defendant had not testified and told the jury to disregard the remarks; whereupon counsel for the State said: 'Well, then, consider that not said.' This Court held that the error was not curred and reversed the case.

In Hoff v. State, the prosecuting attorney, holding in his hand a letter introduced as having been written by the defendant to the woman he was charged with having seduced, said 'Nobody on earth denies that he wrote it. * * * No living soul has denied that defendant seduced this little girl.' The case was reversed for those remarks.

In Smith v. State [87 Miss. 627, 40 So. 230], four persons were present on the occasion of the homicide, the defendant, the deceased, and two state witnesses. The district attorney said: 'No one had denied that he * * * killed Buchanan.' 'No one has denied that the witness Hobson was sober.' This Court, speaking through Judge Truly, said those remarks could 'only be reasonably construed as comments upon the failure of the defendant to testify in his own behalf,' since the only eyewitnesses other than defendant had been introduced by the State; that these comments necessarily directed the attention of the jury to the fact that the defendant had not testified. The Court said further: 'As long as the law stands as now written, it prohibits any comment upon the failure of the defendant to testify. And this is true without regard to the character of the comment, or the motive or intent with which it is made.'

In the Prince case, the district attorney said: 'Gentleman of the jury, he confessed the killing of McAllister to Will Jones, and that confession stands uncontradicted before you to-day.' The court sustained the objection to this statement 'if counsel had reference to defendant's failure to go on the stand.' The district attorney replied that he had no intention of referring to that, whereupon the Judge instructed the jury not to consider the remarks. However, this Court felt compelled to reverse the case, Judge Whitfield saying: 'This Court has several times, in the most positive and emphatic way, held that any sort of reference, of any character whatever, to the failure of a defendant to testify, constitutes reversible error.'

The Gurley case involved a shooting affray between Dr. Davis and Gurley. Each shot the other and Dr. Davis died and Gurley was charged with his murder. Defendant's counsel in his argument had said that if the defendant had died instead of Dr. Davis that Dr. Davis would have been charged with murder of the defendant. The district attorney, replying to that argument, said [101 Miss. 190, 57 So. 566]: 'If that was true, he would have put Blankenship and other witnesses up, and Dr. Davis would have mounted the stand and told how that occurred.' This Court said: 'No ingenuity, however artful, no subtlety, however refined, can escape the conclusion that this statement made by the prosecuting counsel held up to the jury the failure of the defendant to testify. * * * If the other man, Dr. Davis, were on trial, he would be more frank, and not be afraid of a full disclosure; but this defendant was afraid of a full disclosure, and hence dared not testify.' The Court quoted from the Yarbrough case, supra, wherein the Court said: 'The word 'comment,' as employed in the statute, does not mean to criticise or condemn or anathematize the accused for his failure to testify. It forbids, in unmistakable language, any comment, friendly or unfriendly. It forbids any remark, of any character, in any words, upon the failure of the accused to testify. The attention of the jury is not to be called to the fact at all by counsel. * * *'

In Winchester v. State, 163 Miss. 462, 142 So. 454, 456, the district attorney said: 'What defense has been shown here? There is no denial that he killed her. * * * Not a single soul has said she was not shot as this Darden woman has told you.' This Court observed that since appellant and the State's witness, Leona Darden, were the only eye-witnesses to the killing, the language of the State's attorney 'could have meant nothing less than a comment on appellant's failure to testify * * *.'

In the following cases this Court declined to reverse because of remarks of the State's attorney: Drane v. State, 92 Miss. 180, 45 So. 149; Johnson v. State, 109 Miss. 622, 68 So. 917; House v. State, 121 Miss. 436, 83 So. 611; Winters v. State, 142 Miss. 71, 107 So. 281; Baird v. State, 146 Miss. 547, 112 So. 705; Guest v. State, 158 Miss. 588, 130 So. 908; Hanna v. State, 168 Miss. 352, 151 So. 370; Heard v. State, 177 Miss. 661, 171 So. 775; Fry v. State, 194 Miss. 603, 13 So.2d 621; Easterling v. State, 197 Miss. 381, 20 So.2d 840.

In the Drane case, appellant and Burns were indicted for murder. One Latham detailed a conversation he overheard between Burns and appellant. The district attorney said no one had denied on the witness stand what Latham had said. The court remarked that Burns might have been produced as a witness by the defendant.

In the Johnson case, one of the attorneys representing the state said: 'the testimony for the state was uncontradicted.' The Court said it was a fact that the evidence of the State was uncontradicted and this statement was not a reference to the failure of defendant to testify. The opinion does not disclose whether there were available eye-witnesses other than defendant who did not testify. Also, two distinctions may be noted between that statement and the one at bar. First, 'the testimony for the state' includes all matters on which the State introduces evidence, whereas the statement 'Where is the testimony that he did not do it?' refers to one specific thing, the robbery. Second, 'uncontradicted' would include all evidence of a contradictory nature, even circumstantial evidence, whereas, 'There's no denial' conveys the meaning of personal denial on the stand.

In House v. State, the statement was 'There are no eyewitnesses in this case, but Diamond House is responsible for that. There are two people living now who know how this happened. One of them came and told you.' The Court did not say whether this was a comment on the failure of defendant to testify. It assumed, however, for purpose of the decision that it was such comment and then said 'nevertheless we cannot reverse therefor for the reason that the appellant could not have been prejudiced thereby. His guilt is manifest from the evidence, and the jury could not, under their oaths, have arrived at any verdict other than one of guilt.'

In the Winters case [142 Miss. 71, ...