Smith v. State

• Citation: 90 Miss. 111,43 So. 465
• Court: Mississippi Supreme Court
• Decision Date: 18 March 1907
• Parties: ALLIE SMITH v. STATE OF MISSISSIPPI

43 So. 465

90 Miss. 111

ALLIE SMITH v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 18, 1907

March 1907

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

Smith the appellant, was indicted for murder, tried and convicted of manslaughter, sentenced to the penitentiary for a term and appealed--his first appeal--to the supreme court. The judgment of conviction was reversed and the case remanded for a new trial. The first supreme court decision in the case is reported. Smith v. State, 87 Miss. 627, S.C., 40 So 229.

After the remand of the case the defendant was tried a second time of course his second trial was for manslaughter. He was again convicted and sentenced to the penitentiary and appealed therefrom, this second appeal, to the supreme court.

The facts sufficiently appear in the opinion of the court.

Reversed and remanded.

Leftwich & Tubb, for appellant.

In this case the district attorney admitted what the witnesses would swear but intimated that there was a job put up on the jury somewhere and then introduced the stenographer to show that these witnesses did not testify at a former trial. Whether it was the fault of Smith, the witness, or of the attorneys for the defendant at the first trial, or whether the witness was then sick, or what other reason there might have been, is not in evidence, but certainly it is no impeachment of a witness at a second trial to show simply and only that he did not testify at the first. Lawyers are usually able to develop a case better at the second trial than at the first and we think the dealing of the district attorney with these witnesses of unimpeached character was harmful and it is this very thing the court animadverted upon in the case of Scott v. State, 80 Miss. 187, S.C., 31 So. 710.

Under the facts shown by this record it was of extreme importance to the defendant that the evidence presented to the jury should be carefully guarded from error. The state's case, if it should be conceded to have a case at all, hangs by too small a thread for error to be tolerated. It will be observed that the learned district attorney below was not satisfied with the direct case affirmatively and positively made as to what occurred on the fatal encounter which only was competent, but he was constantly sidestepping in order to drag into the case the subsequent conduct of the defendant, or what occurred at the former trial of the case, or what was put in former motions for continuances, or who was introduced in evidence at the former trial, reproaching the defendant that he had never before testified, all of which hung as a cloud over the mind of the jury and prevented their dealing with the case as it was in a clear unprejudiced manner.

At the trial now under review defendant saw fit to take the stand in his own behalf and the learned district attorney then conceived, sidestepping again, that he might discredit his testimony by showing that he had not before testified in the case, either at the committal trial or at the first trial when he was convicted of manslaughter. Bunckley v. State, 77 Miss. 540; S.C., 27 So. 638; Boyd v. State, 84 Miss. 414, S.C., 36 So. 525.

In Yarbrough's case, 70 Miss. 593, this court held that all comment, friendly or unfriendly, was forbidden and said that a new trial would be granted regardless of the nature of the comment. In the Sanders case, 73 Miss. 444, S.C., 18 So. 541, the court reverses the case although the court rebuked the counsel and instructed the jury to disregard the comment and where the counsel asked the remark to be considered withdrawn. Now then, is a direct question made to the accused asking him if he had ever before testified in the case followed by the prompt objection of his counsel, anything more or less than a comment by the state's counsel, and an unfriendly comment at that? The jury saw at once that if it were possible for the defendant to answer that he had testified at a former trial, that the objection would not be interposed; they further saw from the argument of the defendant's counsel to the court that the answer would necessarily be in the negative, or the objection would not be insisted upon. So that looked upon from every standpoint, the question is a comment upon the accused's failure to testify made by the prosecuting officer. The asking of this question under the circumstances we submit was fatal error.

Charge No. 2 asked by the district attorney is as follows: "The court charges the jury that they are the sole judges and weighers of the testimony and the credibility of the witnesses and in passing upon the testimony of any witness the jury may take into consideration the interest such witness may have in the result of the trial, if any, such has been...