Redwine v. State

Citation149 Miss. 741,115 So. 889
Decision Date05 March 1928
Docket Number26957
CourtUnited States State Supreme Court of Mississippi
PartiesREDWINE v. STATE. [*]

Division B

Suggestion of Error Overruled April 2, 1928.

APPEAL from circuit court of Clay county. HON. J. I. STURDIVANT Judge.

S. L Redwine was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

Geo. T. and Chas. S. Mitchell and McClellan & Tubb, for appellant.

We respectfully submit to the court as our first assignment of error that the verdict of the jury was contrary to the law and the evidence in the case. We realize that it is only in very rare cases where this court will set aside the verdict of a jury on the ground that the testimony is insufficient to support the verdict. However, where such is the case, this court will not refuse to take that course. The testimony in the case, we most respectfully submit, is wholly insufficient to sustain a verdict of guilty of manslaughter.

The court erred in permitting the district attorney in his closing argument to the jury, over objection and exception of defendant, to state the matter and things set out in the special bill of exceptions on file. Defendant objected and excepted to this language on the part of the district attorney, and the court sustained the objection and instructed the jury not to consider that part of said argument. However, the poison had been injected, the damage had been done, and it was idle for the court to tell the jury not to consider a thing that had already served its purpose. We respectfully submit that such an argument, especially in a case of this kind, cannot be too strongly condemned and when such argument is resorted to and a conviction of manslaughter wrung from the jury, this court should not hesitate to reverse. This court, in no unmistakable terms, has repeatedly condemned such argument as was made in this case. See Johnson v. State, 78 Miss. 627; Ellerbe v. State, 79 Miss. 10; Windham v. State, 91 Miss. 845, 45 So. 861; Abney v. State, 112 Miss. 546, 86 So. 341.

Rufus Creekmore, Assistant Attorney-General, for the state.

The first assignment of error urged by counsel for appellant is that the jury's verdict of guilty is unsupported by the evidence in the case. The rule in this state is well settled that this court will not, on account of the insufficiency of the evidence, set aside a jury verdict, if there be in the record any competent testimony upon which the jury's verdict could have been based. From the facts, the jury are justified in a verdict of manslaughter.

Counsel next object to the remarks made by the district attorney in his closing argument. It will be observed that the remarks of the district attorney were objected to by counsel. This objection was sustained by the court, and the jury was instructed not to consider that part of the district attorney's argument. Counsel did not ask that the jury be discharged and a mistrial entered, nor did they ask the court to do anything other than stated above. On the contrary they permitted the case to go to the jury without further objection and reaped the benefit of a possible acquittal of the defendant. Under these circumstances, no reversible error was committed by the court in this respect. Our court has been committed to the rule that in order to avail himself of any error committed in this respect, it is the duty of the defendant to move for a mistrial. Allen v. State, 148 Miss. 229, 114 So. 352; Cotton v. State, 135 Miss. 792, 100 So. 385.

OPINION

ANDERSON, J.

The appellant assigns and argues two grounds for reversal of the judgment in this case. First, that the court erred in refusing appellant's instruction for a directed verdict of not guilty; and second, that the misconduct of the district attorney in the argument of the case before the jury should work a reversal of the judgment.

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32 cases
  • Keeton v. State
    • United States
    • Mississippi Supreme Court
    • 6 Abril 1936
    ... ... the state is to be taken as literally true for the purpose of ... the motion. And, in determining that question the court will ... give to the testimony of the state the benefit of every ... favorable inference that may arise from the facts and ... circumstances ... Redwine ... v. State, 149 Miss. 741, 115 So. 889; Pruitt v ... State, 163 Miss. 235, 140 So. 683; Boutwell v. State, ... 165 Miss. 16, 143 So. 479 ... If and ... when the testimony of the defendant is sufficient to make her ... sanity vel non an issue, then the presumption of insanity ... ...
  • Blackwell v. State
    • United States
    • Mississippi Supreme Court
    • 8 Junio 1931
    ... ... be cited or rather a reference made to them, that it is ... wholly unnecessary to move for a mistrial when the trial ... court overrules objeetions made to the language and argument ... of the district attorney ... Allen ... v. State, 148 Miss. 229, 114 So. 352; Redwine v ... State, 149 Miss. 741, 115 So. 889; Matthews v. State, ... 148 Miss. 696, 114 So. 816. [161 Miss. 492] ... The ... matters complained of are legally and properly before this ... court for review ... W. A ... Shipman, Assistant Attorney-General, for the state ... ...
  • Pruitt v. State
    • United States
    • Mississippi Supreme Court
    • 7 Marzo 1932
    ...505. It is not, however, every argument that is improper that will cause a reversal of a case. Matthews v. State, 148 Miss. 696; Redwine v. State, 149 Miss. 741; Cotten v. State, 135 Miss. 729; Allen v. State, 144 So. Gray v. State, 90 Miss. 235; Note 139, Underhill Cr. Ev. p. 90. The defen......
  • Hudson v. State
    • United States
    • Mississippi Supreme Court
    • 15 Mayo 1939
    ... ... determining the propriety of the refusal of the trial court ... to direct a verdict of not guilty and also on determining ... whether to reverse upon the ground of alleged insufficiency ... of evidence to sustain the verdict ... Redwine ... v. State, 149 Miss. 741, 115 So. 889; Pruitt v ... State, 163 Miss. 235, 140 So. 683; Boutwell v. State, ... 165 Miss. 16, 143 So. 479 ... And the ... court has further said that the verdict of the jury will ... stand whenever it finds that the action of the jury was based ... ...
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