Opinion
November 8, 1948.
1. Criminal law — trial — improper questions, mistrial, when order for proper.
When prosecution persists, over the objection of the defendant, in propounding questions so framed as to impress the jury that the accused was a man of a violent and quarrelsome disposition and that he had committed serious assaults upon other persons on different occasions in the past, — so persisting after the court had correctly ruled that such interrogatories were improper — the defendant's motion for a mistrial should have been sustained.
APPEAL from the circuit court of Marion County; J.C. SHIVERS, J.
Roy J. Goss, for appellant.
During the course of the trial the District Attorney repeatedly propounded questions to witnesses which called for wholly incompetent and irrelevant answers and which questions were so framed as to impress the jury, regardless of whether the questions were answered or not, to the effect that the appellant was a man accustomed to committing aggravated assaults on various persons. I am frank to admit that the court correctly sustained all objections made to such questions and that the court's action cannot be complained of. However, it cannot be doubted that in view of the great number of such questions asked in the presence of the jury such questions were of a highly prejudicial nature and in all probability affected the verdict of the jury returned in this case. With due respect to the District Attorney, it should have been known prior to the time the questions were asked that the answers, if given, would be incompetent and irrelevant. Furthermore, it could hardly be doubted that no conclusion was drawn by the jury from the nature of the questions thus propounded favorable to the appellant, but on the contrary such questions no doubt prejudiced the jury against the appellant.
Irrespective of the fact that the court had repeatedly sustained objections to the improper questions being propounded to witnesses by the District Attorney the District Attorney persisted in asking such improper questions.
It will be noted that the appellant not only objected to a continuation by the District Attorney of the improper questions being propounded to the witnesses but therefor asked a mistrial which was not granted by the court. Also, one of the grounds assigned for a new trial was what we considered the improper conduct of the District Attorney during the presentation of the evidence persistently and continuously injecting into the case irrelevant and incompetent as well as prejudicial matters by way of statements asked witnesses in the form of questions.
We earnestly believe that the correct rulings of the trial judge did not remove from the minds of the jury the matters there implanted by the irrelevant and improper questions and that such questions embodying matters calculated to influence the jury against the appellant had a great part in influencing the verdict which was returned.
In fairness to the District Attorney we attribute his conduct and the improper questions to his zeal in prosecuting the case. Irrespective, however, of the absence on his part of any desire to wilfully prejudice the jury against the appellant we believe that great damage was done.
We believe that the rule governing the conduct of prosecuting attorneys is appropriately laid down in 42 Am. Jur., Section 20, page 255:
"Conduct in Trial or Prosecution of Cause. — In criminal prosecutions, it has been said that it is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his statutory or constitutional rights as it is to prosecute him for the crime with which he may be charged. The public interests, however, demand that a prosecution should be conducted with energy and skill. While the prosecuting officer should see that no unfair advantage is taken of the accused, yet he is not a judicial officer. Those who are required to exercise judicial functions in the case are the judge and the jury. The public prosecutor is necessarily a partisan in the case. If he were compelled to proceed with the same circumspection as the judge and jury, there would be an end to the conviction of criminals. Zeal in the prosecution of criminal cases is therefore to be commended and not condemned. If convinced of the defendant's guilt, he should, in an honorable way, use every power that he has to secure his conviction. At the same time, it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, and it is as much his duty to refrain from improper methods calculated to bring about a wrongful conviction as it is to use every legitimate means to bring about a just one. It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury; and, above all things, he should guard against anything that would prejudice the minds of the jurors, and tend to hinder them from considering only the evidence introduced. He should never seek by any artifice to warp the minds of the jurors by inference and insinuations."
The above quotation from American Jurisprudence was cited with approval in the case of Adams v. State, 30 So.2d 593, decided by the Mississippi Supreme Court on May 19, 1947. It is true that a different question was involved in the Adams case but the general discussion touching upon the conduct of prosecuting attorneys in the trial of criminal cases we believe to be applicable to this case.
George H. Ethridge, Assistant Attorney General, for appellee.
It is contended that the trial court erred in refusing to enter a mistrial because of the persistence of counsel for the State in attempting to prejudice and prejudicing the jury by repeatedly propounding irrelevant and incompetent questions to the witnesses for the defendant. That this tended to give the jury the impression that the appellant was of a dangerous nature and criminal character. In dealing with these questions of examination of witnesses and the pertinence of the questions pronounded, the trial court must be presumed to have acted properly and the trial court did sustain the objections made by the defendant to most of these questions. It is true that in some places the appellant requested a mistrial but the trial judge thought sustaining objections was sufficient to cure error of counsel for the State in propounding the questions. Much must be left to the judgment and discretion of the trial judge in such cases. The jury is selected because of their standing as men of good intelligence, sound judgment and fair character, who are patriotic enough to become registered voters and are able to read and write. Consequently, they are able to judge the effect of the law and the evidence in the case. Naturally the jury believes that the judge is right when he sustains an objection to a question. The burden would be on the party complaining to show with reasonable clarity that injustice was not eliminated by the judge's sustaining the appellant's objections. It is often a difficult matter to determine in the heat and progress of a trial just what effect improper questions may have but it must be presumed that the judge's ruling was sufficient to cure the error, if error was made, and when the whole trial is taken into consideration the questions complained of do not constitute reversible error. The trial judge has a better opportunity to judge in such cases than this court can have because he is in the atmosphere of the case, knows the standing and reasoning of the men who constitute the jury and can usually see the effect as to whether error is harmful or harmless.
Appellant was convicted on a charge of assault and battery with intent to kill. There were only two eyewitnesses to the alleged offense, the prosecuting witness and the accused, and there is but little if any substantial evidence of a corroboratory character. As is usual in such cases, the versions given by the two participants in the difficulty differed, but that given by the accused seems to us the more reasonable, and if accepted the accused could not be convicted of a higher offense than assault and battery and perhaps not even of that.
This brings into review the following feature of the record:
In the examination of the witnesses, the prosecuting attorney repeatedly propounded questions so framed as to impress the jury that the accused was a man of a violent and quarrelsome disposition and that he had committed serious assaults upon other persons on different occasions in the past, — and this whether the questions were answered or not. (Hn 1) These interrogations were obviously improper under elementary rules of criminal evidence, and the court repeatedly sustained the objections to them, but the attorney persisted along the same lines until finally the defendant moved for a mistrial, which in view of what had happened the court should have sustained.
What we said in Coleman v. State, 198 Miss. 519, 23 So.2d 404, is sufficiently in point, and we make the same order here as was made in that case.
Reversed and remanded.