Summary
In Aldridge v. State, 180 Miss. 452, 177 So. 765 (1938), the Court held that such a comment must clearly appear from the record.
Summary of this case from Baugh v. StateOpinion
No. 32876.
January 3, 1938.
1. CRIMINAL LAW.
Appellate court will not review argument of prosecuting attorney as comment on accused's failure to testify unless it clearly appears that comment was made on accused's failure to testify.
2. CRIMINAL LAW.
Where a bill of exceptions sets forth no ruling on objection to alleged improper argument of prosecuting attorney and case was submitted to jury without any request that it be withdrawn from them and a mistrial entered on that ground, appellate court would not review question.
3. CRIMINAL LAW.
If bill of exceptions shows that trial court overruled objection to alleged improper argument of prosecuting attorney, trial court's ruling may be reviewed on appeal.
4. CRIMINAL LAW.
If trial court sustains objection to alleged improper argument of prosecuting attorney, it then becomes necessary for accused to request mistrial to preserve his right in respect thereto, since accused has obtained ruling requested, and without request for mistrial he waives any further complaint of the argument.
APPEAL from the circuit court of Madison county. HON. JULIAN ALEXANDER, Judge.
Jack M. Greaves, of Madison, for appellant.
The appellant realizes that this Honorable Court rarely disturbs the finding of facts by a jury, nor reviews such findings except to determine whether or not there is sufficient evidence, if believed by the jury, to support the verdict. This case is one of the rare cases because appellant's conviction is based solely on circumstantial evidence, and was convicted on the evidence of one witness who is shown to be unworthy of belief by competent witnesses. Appellant bases his right to a review on Thomas v. State, 129 Miss. 322, and Permenter v. State, 54 So. 949.
Proof of reasonable doubt of itself proves nothing unless the inference deductible from the facts so proven excludes beyond a reasonable doubt every other hypothesis than that of guilt.
Haywood v. State, 90 Miss. 461; Permenter v. State, 54 So. 949.
Appellant further says he should be granted a new trial because of certain remarks made by C.B. Greaves, special prosecuting attorney in this case. Mollie Haynes was called as a witness for the State and says that she lived in the house with appellant and the deceased; that the appellant was highly desirous of having her for his lady love, and that about one week before the death of Lena Alridge, appellant asked her in the event Lena Alridge should die, would she be his woman. Appellant did not take the stand in his own behalf, and the Hon. C.B. Greaves, attorney for the prosecution, in his opening remarks to the jury said that no one had denied this love affair; appellant's attorney promptly called for the court reporter who was absent, and he then entered a timely objection to the remarks of C.B. Greaves, and set out his reasons therefore as fully appear in the two bills of special exceptions filed in this appeal; the Honorable Court failed to sustain appellant's objections to the remarks of C.B. Greaves, but only requested Mr. Greaves to be more specific in his remarks. There was no need for appellant to request a new trial at that stage of the trial because the court would not sustain his objection, and he would have been asking for something that did not exist.
Where court sustains defendant's objection to remarks of district attorney, defendant must move for a mistrial in order to be in proper standing before the Supreme Court. In present case nothing existed for said motion to be made because defendant was not sustained in his objection.
Allen v. State, 114 So. 352; Ransom v. State, 115 So. 208.
C.B. Greaves again said that no one had denied this love affair between this yallow gal and the defendant. Appellant again objected because Mollie Haynes, black as an ace of spades, was the only one who had testified as to the love affair, and the defendant was the only one on earth who could deny same. The remarks of C.B. Greaves, attorney, were a direct reflection on failure of appellant to testify in his own behalf.
Keeton v. State, 102 Miss. 747; McLeod v. State, 130 Miss. 83; Elmore v. State, 143 Miss. 318; Yarbrough v. State, 70 Miss. 593; Reddick v. State, 72 Miss. 1008; Sanders v. State, 73 Miss. 444; Harris v. State, 96 Miss. 379.
Russell Wright, Assistant Attorney-General, for the state.
The testimony of witness as to facts authorizing conviction, where corroborated, will sustain conviction, notwithstanding witness' bad reputation for truth and veracity.
Blackwell v. State, 161 Miss. 487, 135 So. 192.
A verdict will always be permitted to stand, unless it is opposed by decided preponderance of the evidence, or is based on no evidence whatever.
Cicily v. State, 13 S. M. 202; Browning v. State, 33 Miss. 47.
Defendant alleging exception must show affirmatively in the record; and unless a bill of exceptions shows error, none will be presumed.
McQuillon v. State, 8 S. M. 587.
To authorize reversal of conviction, appellate court must be satisfied that error was committed.
Wexler v. State, 167 Miss. 464, 142 So. 501.
The court on appeal will not reverse a conviction for improper argument unless a bill of exceptions be taken at the time showing that the remarks were prejudicial.
McLeod v. State, 130 Miss. 83, 103 So. 928.
Improper argument by district attorneys should be embodied in bill of exceptions in order to be reviewed by Supreme Court.
Elmore v. State, 143 Miss. 318, 108 So. 722.
Argued orally by Jack M. Greaves, for appellant, and by Russell Wright, for appellee.
This is an appeal from a conviction of murder followed by a sentence to the penitentiary for life.
The evidence clearly presents a case for the jury, including the credibility of the witness Louis James Murrell. The appellant did not testify, and two special bills of exception were filed presenting objections to the argument of an attorney associated with the prosecution; the ground thereof being that the argument constituted a comment on the failure of the appellant to testify.
It is not clear from the first of these bills of exception whether the argument was susceptible of this construction, and the court seems to have held that it was not. In order for this ruling to be reviewed, it must clearly appear that comment was made by the attorney on the failure of the appellant to testify.
The second bill of exceptions was not signed by the trial judge, but by two attorneys at law who were present and heard the argument. The language of the attorney set forth seems to be capable of being construed as a comment on the failure of the appellant to testify. No ruling on this objection is set forth, and the case was submitted to the jury without any request that it be withdrawn from them and a mistrial entered.
If it appeared that the court overruled the objection, the ruling could be here reviewed. Had it sustained the objection, then, in order to preserve any right the appellant had because of the argument, it was necessary for him to request a mistrial. Where such an objection is sustained, the appellant has obtained the ruling requested, and without a request for a mistrial, he waives any further complaint of the argument. Guest v. State, 158 Miss. 588, 130 So. 908, and Floyd v. State, 166 Miss. 15, 148 So. 226.
Affirmed.