Peyton v. State
| Decision Date | 10 December 1973 |
| Docket Number | No. 47522,47522 |
| Citation | 286 So.2d 817 |
| Parties | Roosevelt PEYTON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Clayton Taylor Lewis, Philadelphia, for appellant.
A. F. Summer, Atty. Gen., by Karen Gilfoy, Special Asst. Atty. Gen., Jackson, for appellee.
This is an appeal from the Circuit Court of Neshoba County. The defendant, Roosevelt Peyton, was convicted of attempted murder and sentenced to serve a term of 10 years in the Mississippi State Penitentiary. Peyton assigns as error the action of the trial court in denying a continuance, overruling objections to the argument of the prosecuting attorneys and failing to set aside the verdict of the jury because it was against the overwhelming weight of the evidence.
Peyton contends he was entitled to a continuance because of a variance between the indictment and capias. The indictment charged him with attempted murder under Section 2017 Mississippi Code 1942 Annotated (Section 97-1-7 Mississippi Code 1972 Annotated), but the charge in the capias was assault and battery with intent to kill under Section 2011 Mississippi Code 1942 Annotated (Section 97-3-7 Mississippi Code 1972 Annotated).
Peyton's attorney contended that he was prepared to defend a charge of assault and battery with intent to kill, but not the charge of attempted murder. He admitted that both the capias and a copy of the indictment were served on the defendant. Before the request for a continuance was considered, a demurrer to the indictment was filed, argued and overruled, therefore, he must have known that the indictment charged the crime of attempted murder. The trial court did not abuse its discretion in refusing the continuance.
Peyton's attorney objected to certain statements made by the county attorney and the district attorney in their arguments to the jury. The objections were dictated into the record during the course of the argument, and are attacked as a designed attempt on the part of the state's attorneys to prejudice the jury.
In many cases the Court has considered the propriety of argument of counsel and in Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817 (1930) this Court stated:
It is always a difficult matter, as well as a delicate one, to determine whether there has been an abuse of the privilege of advocacy in the argument of the causes, except in few cases where it is so palpably evident that the case has been prejudiced by a statement of facts not in evidence or by gross invectives and abuse, and we do not have the advantage that the trial judge has of hearing the argument as a whole. The trial judge has a peculiar and distinct advantage of the judges of this court in judging upon such questions, because he is not only familiar with the evidence and the atmosphere of the case, as it may be called, but he has heard the entire argument and knows the setting that the language complained of has in connection with the argument on both sides of a case. Very often by a course of argument counsel on one side of an argument provoke a course of argument which would not be made without being provoked, and it is, of course, easy for the trial judge to see whether this is true or not. He has a duty to perform to see that there is no such abuse of the parties in argument as would make injustice prevail in the case. . . . (159 Miss. at 381, 131 So. at 820).
Pitts v. State, 211 Miss. 268, 51 So.2d 448 (1951) contains a summary of the function of the appellate court when reviewing argument of counsel in the following language:
The basic conclusion to be drawn from the many decisions in the history of this court concerning argument of counsel is that counsel has an extremely liberal latitude in arguing a controversy, and that this court's responsibility is to weigh the arguments assigned as error in the scale with the entire context of the case. . . . (211 Miss. at 294, 51 So.2d at 459).
We have carefully considered the objections to the argument of the state's attorney in the light of the principles announced by this Court, and we hold that the trial judge did not abuse his discretion in overruling the objections made to the argument. See also Craft v. State, 271 So.2d 735 (Miss.1973) and Cannon v. State, 190 So.2d 848 (Miss.1966) and cases cited therein.
We note one specific objection as follows:
BY MR. LEWIS:
He said, 'we believe that he is guilty, and guilty beyond every reasonable doubt,' and I object to this and move the Court for a mistrial.
A similar objection was discussed in Long v. State, 163 Miss. 535, 141 So. 591 (1932) and in disposing of the objection the Court stated:
It is objected that the court erred in permitting...
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Spicer v. State, No. 2003-DP-02281-SCT.
...the evidence and to make suggestions as to a proper conclusion." Evans v. State, 725 So.2d 613, 671 (Miss.1997) (quoting Peyton v. State, 286 So.2d 817, 819 (Miss.1973)). We find that Spicer's third assertion of error is without IV. Vehicle Search ¶ 34. Spicer argues that the trial court er......
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Blue v. State, 93-DP-00534-SCT
...because the prosecutors's comments were properly based on the evidence, Blue's assignment of error is without merit. Peyton v. State, 286 So.2d 817, 819 (Miss.1973) (although it would have been more prudent for prosecutor to draw inferences without stating his personal opinion in the statem......
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Evans v. State
......However, as this Court stated in Blue, "the very purpose of an advocate is to help the jury draw conclusions from the evidence and to make suggestions as to a proper conclusion." Blue, 674 So.2d at 1208 ( quoting Peyton v. State, 286 So.2d 817, 819 (Miss. 1973) ). . (d) Now that's what we had in there. We're at a very important part of this case. We all seem that we're focusing on count three right now, but we still heard from some of these witnesses that only talked about count one and two, and what was that? ......
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Spicer v. State, No. 2003-DP-02281-SCT (MS 1/5/2006)
...evidence and to make suggestions as to a proper conclusion." Evans v. State, 725 So. 2d 613, 671 (Miss. 1997) (quoting Peyton v. State, 286 So. 2d 817, 819 (Miss. 1973)). We find that Spicer's third assertion of error is without IV. Vehicle Search ¶34 Spicer argues that the trial court erre......