Shaw v. State
| Decision Date | 29 April 1940 |
| Docket Number | 34031 |
| Court | Mississippi Supreme Court |
| Parties | SHAW v. STATE |
APPEAL from circuit court, Montgomery county HON. JNO. F. ALLEN Judge.
Lonnie Shaw was convicted of assault and battery with intent to kill and murder, and he appeals. Affirmed.
Affirmed.
J. W Conger, of Winona, for appellant.
The record shows that the district attorney used the language "The instructions are sugar coated; these instructions were prepared to mislead the jury; these instructions are telling you one thing when the law is another; it is always evidence of a defendant's weak case when he procures from the court a lot of instructions."
The defendant timely objected to the statements of the district attorney, and the court sustained the defendant's objection, but the defendant went further and asked for a mistrial, as requested by the Aldridge case, 177 So. 765.
There is no doubt about the statements being prejudicial to the defendant.
The argument was not provoked by anything that happened on the trial; it was purely voluntary, with the effect of prejudicing the jury. The argument was not legitimate.
Guest v. State, 130 So. 908, 158 Miss. 588.
It is rather preposterous to think that a prosecutor has the right to tell the jury, in open court, in his argument that the instructions were prepared to mislead and that they are sugar coated, and that the instructions say one thing and the law is another thing, and that the number of instructions asked for and signed by the judge on behalf of the defendant is evidence of his weak case.
It was the duty of the judge to interrupt the district attorney, rebuke him, allow the defendant the alternative of proceeding or a mistrial.
It will be openly agreed that the remarks were prejudicial, we are sure, and we believe a mistrial should have been granted, and since it was not granted, the only tribunal now that can correct the matter is this court, and we, therefore, pray that the cause be reversed and remanded.
W. D. Conn, Jr., Assistant Attorney-General for appellee.
The alleged improper argument appears at page 73 of the record and is shown by way of a motion dictated into the record by appellant's counsel, Mr. Conger. So far as a review of the ruling of the court in this respect is concerned, we think that it cannot be reviewed. This court has said in a number of cases that unless the argument is taken down by the stenographer and incorporated in the general bill of exceptions any objectionable argument can only be shown by a special bill of exceptions made up in some one of the ways authorized by law.
Keeton v. State, 102 Miss. 747, 59 So. 884; Huggins v. State, 103 Miss. 227, 60 So. 209; Brumfield v. State, 102 Miss. 610, 59 So. 849.
This court has also said that the averments of a motion do not amount to any proof at all.
Reed v. State, 143 Miss. 686, 109 So. 715; Young v. State, 150 Miss. 787, 117 So. 119.
Assuming, however, that the court may properly review this matter, and assuming that the district attorney said what appellant's counsel said he did, we do not believe that what happened would warrant a reversal of this conviction. Assuming that all of the recitals of the motion are true, it appears that the district attorney made an argument calculated to disparage the instructions given to the jury at the request of the defendant. The court has said that this character of argument is improper.
Winchester v. State, 163 Miss. 462, 142 So. 454; Yarbrough v. State, 165 Miss. 847, 147 So. 780; Floyd v. State, 166 Miss. 15, 148 So. 226.
In none of these cases, however, did the court say that it was reversible error to indulge in this sort of argument, although two of the cases were expressly reversed upon other grounds.
We think that the sustaining of the objection and the statement of the trial judge that the defendant's instructions were a part of the law given to the jury by the court, were sufficient under all the circumstances so as not to require any reversal of the conviction which later resulted.
The appellant was convicted in the Circuit Court of Montgomery County on an indictment charging him with assault and battery with intent to kill and murder, and sentenced to serve a term of five years in the state penitentiary. No complaint is made that the proof fails to sustain the verdict and judgment appealed from, but a reversal is sought on the ground...
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...issue without any further pleading, but the allegations thereof do not amount to any proof of the facts stated therein. Shaw v. State, 188 Miss. 549, 195 So. 581 (1940). It devolves upon the movant to support his motion by proof. Reed v. State, 143 Miss. 686, 109 So. 715 (1926). It is also ......
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