Mitchell v. State

• Decision Date: 09 November 1936
• Docket Number: 32212
• Citation: 170 So. 534,176 Miss. 873
• Court: Mississippi Supreme Court
• Parties: MITCHELL v. STATE

170 So. 534

176 Miss. 873

MITCHELL v. STATE

No. 32212

Supreme Court of Mississippi

November 9, 1936

Suggestion Of Error Overruled November 30, 1936.

(In Banc. Suggestion of Error Overruled Nov. 30, 1936.)

1. CRIMINAL LAW.

In murder prosecution wherein accused's attorney argued that accomplice had a "trade" with the State and that such "trade" or understanding was to effect that he would testify for State against accused, for which favor accomplice would be given life imprisonment, district attorney's argument "I can tell the jury that Cook did not have any trade with me" held not prejudicial where there was no evidence to justify either statement and if district attorney was guilty of misconduct, it was brought on by accused's attorney.

2 WITNESSES.

In murder prosecution, cross-examination of accused as to why he did not take his wife and baby with him when he fled and why he did not contact them during time he was a fugitive held not objectionable, on ground that cross-examination amounted to comment on failure of accused's wife to testify in accused's behalf, where such questions were asked for purpose of testing truth of accused's claim of lapse of memory.

3. CRIMINAL LAW.

Instruction in murder prosecution that jury was not impaneled for purpose of convicting defendant "but for purpose of acquitting him" and that jury was not authorized to convict until State had shown beyond every reasonable doubt and to moral certainty guilt of defendant held properly refused and modified by striking out the words "but for the purpose of acquitting him."

4 HOMICIDE.

In murder prosecution wherein accused denied having made statement to deputy sheriff showing accused's guilt, his flight, and accurate memory of all facts, alleged error in admitting in rebuttal deputy sheriff's testimony that accused made voluntary statement admitting murder, his flight, and that accused told accomplice to go back and lay blame on accused, on ground that statement was confession of guilt and could not be offered except in chief, held harmless where there was no conflict in evidence as to accused's guilt.

HON JNO. M. KUYKENDALL, Judge.

APPEAL from the circuit court of Yalobusha county, HON. JNO. M. KUYKENDALL, Judge.

William C. Mitchell was convicted of murder, and he appeals. Affirmed.

Affirmed.

Stone & Stone, of Coffeeville, for appellant.

The special bill of exceptions was prepared and signed by the presiding judge showing that the district attorney said to the jury, "I can tell the jury that Cook did not have any trade with me."

The circuit judge laboriously puts it in in two or three places that this improper statement by the district attorney was in response to the argument of defendant's counsel; however, we will not admit that this gives a right to the district attorney to testify in a law suit during his argument. The district attorney has no right to openly and flagrantly go beyond his limit in his argument and testify in the law suit and then have the circuit judge certify in the special bill of exceptions that this was in response to an argument of defendant's counsel.

The district attorney in his close examination of Mitchell, the defendant, was allowed, over our objection, to go much too far in his examination concerning the man's association with his family in the interval between the date of the crime and the defendant's apprehension. This was a very clear, though subtle, comment on the failure of defendant to put his wife on the stand, and a very clear holding up to the jury of the fact that the man had not put on, up to that time, his wife and calling attention of the jury to the fact that he was obligated to do so.

Next we take up the exception covering the court's modification of our instruction. Modification is covered by this: "The court instructed the jury for the defendant that you are not impaneled for the purpose of convicting the defendant but for the purpose of acquitting him, and you are not authorized . . .," and the court modified the instruction by striking out "but for the purpose of acquitting him." I am arguing this exception in my brief, but I will confess that I have no case in Mississippi upholding my contention for this clause in the instruction. At the same time I have no case in Mississippi condemning this clause in the instruction. It is true that I defended many men charged with murder before I ever saw this instruction but I know that it is in common use in more than one district of the state of Mississippi, and I desire a decision of the court as to whether or not we are justified in its use.

As to the testimony of Lowrance Walker, I think there is no need of argument to say that this is certainly classed up as a confession. After the jury came back in the box and he had been allowed, over our objection, to say that he asked the defendant, "if A. K. Burr was the man who caught him," and giving defendant's answer, "Hell, no," then we, for the defendant, objected to anything further, and then, over our objection specifically made, they allowed them to ask Walker, "Did Mr. Mitchell make any other statements?," and in answer he said, "I had Jim carry me up near memphis and I told him to come back and tell them I done it all, lay it all on me. I was informed Jimmy came clear and I began to write back to New Orleans to my folks and if l had known today . . ."

There is no amount of argument that would even tend to convince anyone that this was not a confession, the most damning statement in the nature of confession that could possibly be conceived in the mind of man.

We say on the first part of this argument about Lowrance Walker's testimony, that it never was qualified as a confession, no matter at what stage of the trial it was offered. It was shown to have been in answer to an importunate question by this special officer.

The second phase of the argument on this testimony of Lowrance Walker is that while we do not abandon for one moment our position that it was never qualified as a confession but that allowing for the sake of argument that it was qualified as a confession, it should have been heard in the state's testimony in chief and not in rebuttal.

Hathorne v. State, 138 Miss. 11, 102 So. 771.

Webb M. Mize, Assistant Attorney-General, for the state.

The statement made by the district attorney in his closing argument to the jury was made after the defendant's counsel, in the preceding argument, had stated that the witness, Cook, had a trade with the state on the other charge for killing the other negro that they would not hang him and that was the reason he (Cook) testified for the state. The statement of the district attorney, therefore, was merely in answer to statement made by the defendant's counsel. This argument was entirely legitimate, due to the statement made by the defense counsel in his argument and was necessary in answer to the statement that Cook had made a trade with the state to save his neck on the other murder charge.

Furthermore, if there was any error committed by the court under this assignment of error, it was waived by appellant when he did not make a motion for a mistrial. He cannot take the chance of getting an acquittal by the jury after an objectionable comment has been made, unless he asks for a mistrial immediately upon the court's action on the alleged objectionable matter.

Allen v. State, 148 Miss. 229, 114 So. 352; Cotton v. State, 135 Miss. 792, 100 So. 383.

Appellant says in this court that certain questioning of defendant by state's attorney was a comment on the failure of the defendant to call his wife to testify in his behalf and that, therefore, it constituted reversible error. All of the objections to these questions were made on specific grounds in the court below, but appellant, in his brief, makes his objections on specific grounds, but changes the objections. The rule is that where an objection is made on specific grounds the objection goes to those grounds only and that other reasons for the incompetency of the evidence cannot be assigned and availed of on appeal.

Conwill v. State, 147 Miss. 118, 112 So. 868; Peters v. State, 158 Miss. 530, 130 So. 645; Johnson v. State, 154 Miss. 512, 122 So. 529; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745.

Appellant assigns as error the action of the court below in modifying instruction No. A. Appellant says that he declined to use the instruction after the modification was made by the court. The appellant may have refused to use that particular instruction, but from the record it appears that the instruction was used with the modification.

The instruction, before the modification by the court, as far as I have been able to determine, has never been used by the courts of this state. It does not state a correct principle of law as the jury is never impaneled for the purpose of acquitting, or for the purpose of convicting, but a jury is impaneled for the purpose of hearing the evidence and to acquit, if the facts show the accused not guilty, and to convict if the facts show the accused guilty. There was no error in the court refusing to give the instruction as written.

There were fifteen instructions given at the request of the appellant. These instructions covered every known right that the defendant may have had and where the instructions given amply present the defense disclosed by the evidence, refusal of other instructions requested is not reversible error.

Crawford v. State, 144 Miss. 793, 119 So. 517; Mabry v. State, 71 Miss. 716, 14 So. 267; Dewberry v. State, 168 Miss. 366, 151 So. 479.

The testimony of Lowrance Walker was admissible for several reasons. First, it was admissible to impeach the testimony of defendant. He said he had...