Smith v. State

• Decision Date: 09 November 1925
• Docket Number: 24931
• Citation: 105 So. 758,141 Miss. 772
• Court: Mississippi Supreme Court
• Parties: SMITH v. STATE. [*]

105 So. 758

141 Miss. 772

SMITH v. STATE. ^[*]

No. 24931

Supreme Court of Mississippi

November 9, 1925

Division A

(Division A.).

1. CRIMINAL LAW. Argument to be confined to testimony and proper inferences therefrom.

Argument of counsel should be confined to the testimony and proper inferences therefrom, and not contain a charge of relations not shown by or fairly inferable from testimony.

2. CRIMINAL LAW. Charge in argument unsupported by testimony of relations as motive, held prejudicial.

A charge in argument of illicit relations of deceased and defendant with a certain woman, having no support in the evidence, with resulting jealousy as the motive for the killing, held prejudicial.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS Judge.

Homer E. Smith was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

J. W Bradford, for appellant.

A prosecuting attorney may exercise considerable latitude in presenting his case to the jury and may argue all matters that may be properly inferred from the evidence but is never permitted to go out of the record and inject an issue which has never been hinted at by the evidence, and of which the jury knows nothing. The county prosecuting attorney is an officer not only of the court, but an elected efficer of the county, and when statements are made by him to a jury, especially of the kind and character made by the prosecuting attorney in this case, upon matters not in the record, he becomes a witness, and because of his office his statements carry great weight, therefore, the jury believed that not all of the facts came out in the evidence, but they could see through it all now since the statements of the county attorney had been made, and promptly found the defendant guilty.

As the county attorney proceeded in his argument to state that jealousy and jealousy alone caused Smith to assassinate Darnell, using the exact language embraced in the bill of exceptions to which we direct the court's attention, appellant immediately objected, and objections being overruled the county attorney proceeded with more vehemence and enthusiasm to continue a repetition of the same accusations and charges in his argument to the jury. This argument on the part of the county attorney so inflamed the passions of the jury that appellant after this argument never had a chance for an acquittal. This argument deprived him of the benefit of a fair and impartial trial under the law and evidence. Such action is reversible error.

The supreme court of Wisconsin, in Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582, nearly fifty years ago announced the law relating to the high mission of attorneyship. See Rowe v. State, 101 So. 91, where it is quoted with approval.

In Rowe v. State, supra, the court held that where the testimony of the state witnesses was to the effect that they found locked up in a trunk, a copper worm to a still, and some connections, this being all of the testimony relating to the still, a statement by the solicitor, "Why, if the court please, he had a whisky still in that house at that time," was reversible error. See Collins v. State, 54 So. 666; Whit v. State, 87 Miss. 564, 40 So. 324, 112 Am. Rep. 460.

Statements of a prosecuting attorney which have no basis in the facts developed by the evidence, and which are calculated to arouse prejudice in a murder case where the evidence is of a doubtful character are grounds for reversal. Sykes v. State, 89 Miss. 766, 42 So. 875; Magness v. State, 103 Miss. 30, 60 So. 8.

In a murder trial the prosecuting attorney's vigorous urging for conviction, characterizing accused as a bad negro, although the evidence did not support this charge, and stating he never prosecuted innocent persons, constitutes reversible error, where the court sustains accused's objection to the remarks, but did nothing further. Kelley v. State, 103 Miss. 850, 74 So. 679.

Our courts have consistently condemned heated and passionate arguments by attorneys calculated to inflame the minds of the jury against the prisoner, where not justified by the evidence. See Middleton v. State, 80 Miss. 393, 31 So. 809; Long v. State, 81 Miss. 448, 33 So. 224; Harwell v. State, 93 So. 366; Strong v. State, 98 So. 806; Evans v. State, 54 So. 154; Martin v. State, 63. Miss. 505; Brow v. State, 103 Ind. 133; People v. Dane, 59 Mich. 550; House v. State, 9 Tex.App. 567; Sassee v. State, 68 Wis. 530; Stone v. State, 22 Tex.App. 185; Note to Donald v. People, 126 Ill. 150, 9 Am. St. Rep. 547; Hampton v. State, 88 Miss. 257, 40 So. 545, 117 A. S. R. 740; Fielding v. People, 158 N.Y. 542, 70 A. S. R. 493, 2 R. C. L. 416, and Note 18.

We insist that because of the error on the part of the court in permitting the county attorney, in his argument to the jury, to use the language set forth in the bill of exceptions, this case ought to be reversed and remanded for a new trial.

J. L. Byrd, Assistant Attorney-General, for the state.

Appellant's whole brief is directed to the remarks of the county attorney which were objected to, and were made the subject of a bill of exceptions. The remarks of the county attorney were to the effect that the motive for the killing was jealousy of the appellant on account of the relations between the deceased and Mrs. Jackson. The appellant cites a great many authorities with reference to statements by prosecuting attorneys in their arguments to the jury. All of the authorities cited are, we think, good law, but we do not think the present case comes within the condemnation of these cases. It is true that a prosecuting attorney, or any other attorney for that matter, has no right to comment on matters which are not in issue and about which there is no testimony but we submit that a careful reading of this record will show that the county attorney could reasonably infer from the testimony as to the acts of the deceased, and the acts of the appellant, that there was brobably some ground for his statement. The circuit judge refused to sustain objections to the line of argument made by the county attorney, and he had heard all of the evidence; had watched the trial from its beginning, and he was in a better position to know than this court could be, because many things occur in the trial in the lower court which would give the trial court an opportunity to know these things, whereas it would be difficult to determine them on appeal. Unless the motive was, as charged by the county attorney, we must search in vain in this record for a motive, because the testimony is silent...