Reddick v. State

• Decision Date: 07 January 1895
• Citation: 16 So. 490,72 Miss. 1008
• Court: Mississippi Supreme Court
• Parties: BURT REDDICK v. THE STATE

16 So. 490

72 Miss. 1008

BURT REDDICK v. THE STATE

Supreme Court of Mississippi

January 7, 1895

fro the circuit court of Yazoo county. HON. J. B. CHRISMAN Judge.

Appellant was indicted for murder and convicted of manslaughter. The opinion of the court sets out the language used by the district attorney pro tem. in addressing the jury. On the motion for a new trial, as the record shows, the prosecuting attorney testified as follows: "Referring to the alleged admission to D. A. Swayze, I said, 'He has not denied it;' never used the word defendant, and, immediately upon suggestion of counsel, corrected myself, and said, 'It has not been denied.' It was not my intention to refer to the fact that the defendant failed to take the stand in his own behalf."

As the court does not refer separately to the instructions, but passes upon them as a whole, it is not deemed necessary to set them out, or to make any further statement of the case.

Reversed.

Barnett & Thompson, for appellant.

1. It was error to overrule defendant's motion for judgment when the state rested in chief. At that time the testimony of Swayze, which was the only material evidence against the defendant, had not been introduced. It was introduced in rebut tal! It is neither allowable nor just to permit the prosecution to resort to so cheap a trick as to reserve its strongest evidence for the last. This is a matter of practice, but we beg the court 72 Miss.--64 to consider the danger of allowing a practice which compels the accused to exonerate himself before the incriminating evidence is produced against him.

For the reason stated above, it was improper to admit the testimony of Swayze after defendant had closed.

2. The constitutional rights of the defendant were infringed by the remarks of the district attorney in addressing the jury. Yarbrough v. State, 70 Miss. 593. Irrespective of the intention of counsel, if what he said conveyed the meaning to the jury that the comment was on the failure of the accused to testify, the statute was violated.

The correction by the court did not neutralize the pernicious consequences of the allusion of counsel. Angelo v People, 96 Ill. 209; Long v. State, 56 Ind. 182. The mind of the average juror cannot, upon a mere admonition from the court, free itself of an impression such as this comment would make.

Frank Johnston, attorney-general, for the state.

The district attorney's testimony shows that he had no intention of referring to the failure of the defendant to testify. His remarks might reasonably have applied to the witness, Swayze, or to the fact that no testimony was introduced to contradict the confession, or, generally, that the fact of the confession was not controverted. I submit that the language of the court in Yarbrough v. State, 70 Miss. applies only to a case where it plainly appears that the comments or criticisms were actually directed at the defendant. Every remark of counsel which, by possibility, might be construed into a criticism because of defendant's failure to testify, will not be a ground for reversal. To come within the meaning of § 1741 of the code, there must be an express violation of the statute.

OPINION

WOODS, J.

The remark of counsel for the state, in his opening argument addressed to the jury, was regarded by the intelligent and able counsel for the accused, and by the learned judge who presided on the trial, as a comment upon the failure of the prisoner to testify. The counsel for the state himself admits that, referring to the alleged admission made by the prisoner to the state's witness, Swayze, he used this language, viz.: "And he has not denied it." He further admits that, when the prisoner's counsel interrupted him, suggesting the impropriety of this comment, he...