Smith v. State

• Decision Date: 19 March 1906
• Citation: Smith v. State, 87 Miss. 627, 40 So. 229 (Miss. 1906)
• Court: Mississippi Supreme Court
• Parties: ALLIE SMITH v. STATE OF MISSISSIPPI

40 So. 229

87 Miss. 627

ALLIE SMITH v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 19, 1906

FROM the circuit court of, first district, Chickasaw county, HON EUGENE O. SYKES, Judge.

Smith the appellant, was indicted and tried for murder. He was convicted of manslaughter, and appealed to the supreme court. The facts upon which the case turned are apparent from the opinion of the court.

Reversed and remanded.

R. H Knox, for appellant.

The court below erred in permitting counsel for the state to say, in argument to the jury, that "no one had denied that he [Smith] killed Buchanan," and that "no one had denied that the witness, Hobson, was sober." Yarbrough v. State, 70 Miss. 593 (S.C., 12 So. 551); Reddick v. State, 72 Miss. 1008 (S.C., 16 So. 490).

Argued orally by R. H. Knox, for appellant, and by William Williams, attorney-general, for appellee.

OPINION

TRULY, J.

This case is plainly covered by the rule announced in Hoff v. State, 83 Miss. 488 (35 So. 950). The record shows that there were only four persons present on the occasion of the homicide--the defendant the deceased, and two state witnesses. It appears that both the eyewitnesses were introduced by the state upon the trial, and examined at length. Consequently, the statement of the district attorney that "no one had denied that he [the defendant] killed Buchanan," and the further statement that "no one had denied that the witness, Hobson, was sober," can only be reasonably construed as comments upon the failure of the defendant to testify in his own behalf. As the record showed that all of the eyewitnesses, except the defendant, had testified, this comment upon a failure to deny the facts of the homicide, as testified to by the witnesses, necessarily directed the attention of the jury to the fact that the defendant...