Summary
In Coleman v. State, 22 So.2d 410 (Miss. 1945), this Court said that a similar instruction had been approved since Wesley v. State, 37 Miss. 327 (1859).
Summary of this case from Shinall v. StateOpinion
No. 35945.
October 8, 1945.
1. CRIMINAL LAW.
Assignments of error which are not argued do not require review.
2. ARSON.
In prosecution for attempted arson, evidence that defendant was intensely enamored of a man believed by her to be in the house with another woman and that her purpose, driven by her jealousy, was to burn him out of there, was competent.
3. CRIMINAL LAW.
Incompetent evidence pressed upon jury, especially if of an inflammatory character, is presumed to have been harmful, and it is only when Supreme Court can say with confidence that it had, in all probability, no such effect, that Supreme Court may decline to reverse on account of it.
4. CRIMINAL LAW.
In prosecution for attempted arson, though it was competent for state to attempt to show that defendant was intensely enamored of a man believed by her to be in the house with another woman and that, driven by her jealousy, she attempted to burn him out of there, cross-examinations both of defendant and of the man which stressed collateral matters as to their relationship was prejudicial error.
APPEAL from the circuit court of Lauderdale county, HON. JESSE H. GRAHAM, Judge.
Cecil A. Rogers, of Meridian, for appellant.
The defendant is entitled to a fair trial, and intemperate, abusive and overzealous remarks by counsel for the state during the course of the trial, either in the opening statement, examination of witnesses, or the summation, are sufficient grounds per se to justify and demand the reversal of a judgment of conviction even though the court instructed the jury to disregard them.
Richberger v. State, 90 Miss. 806, 44 So. 772; Guest v. State, 96 Miss. 871, 52 So. 211; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Volkmor v. United States, 13 F.2d 594; Pierce v. United States, 86 F.2d 949; Kassin v. United States, 87 F.2d 183.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Counsel relies upon the method of examination by the district attorney and questioning tending to show that there were improper and illicit relations between the defendant and Bourdeaux Anderson and between Bourdeaux Anderson and Lizzie May Wright. The testimony elicited by the district attorney showed that Bourdeaux Anderson was a married man whose wife was not living with him in Meridian, that the defendant was a married woman whose husband was in the United States Army and far removed from Meridian, and that Bourdeaux Anderson and the defendant were keeping company, and other facts developed from the testimony of Mr. Ferguson, the fire marshal, as to Bourdeaux Anderson being in the room with the appellant undressed, and other circumstances, including testimony of both the defendant and Bourdeaux Anderson as well as other persons testifying, that would tend to show and from which the jury had a right to believe that illicit relations were existing between Bourdeaux Anderson and the defendant and that this made the defendant intensely jealous of Lizzie May Wright who was also keeping company with Bourdeaux Anderson under circumstances tending to show illicit relations between them. Motive is one of the powerful circumstances, a species of evidence that shows or tends to show guilt when proven by either direct or positive testimony that a person is guilty of a crime. The threat by the appellant to burn Bourdeaux Anderson out, followed by an almost immediate kindling of fire on the back porch and coupled with the subsequent statement of the appellant in jail, should certainly be sufficient to establish the crime. The district attorney was merely developing the fact and circumstances from which the law directs conclusions for motive, which motive coupled with the other proof tends to establish the crime. It was legal and competent evidence against the appellant and, if the jury was in fact enflamed against the appellant or prejudiced in any manner against her, it was such as a jury was authorized to indulge and was creditable to their thought and verdict.
Two of appellant's five assignments of error are not argued and therefore do not require review. Two others are not well taken for reasons not necessary to elaborate upon.
As to the remaining assignment, appellant has good grounds for her complaint. It was competent for the state to show the motive of appellant in attempting to burn the house, if she did so, and it was competent, therefore, to show that appellant was intensely enamored of a man believed by her to be in the house with another woman and that her purpose, driven by her jealousy, was to burn him out of there, as two or three witnesses say she threatened at the time. When this motive was shown it was enough, so far as her relations with this man and his relations with her were concerned; but the cross-examinations by the prosecuting attorney both of the defendant and of the man in the case, who was one of her witnesses, were permitted to descend into inquiries which were put and stressed in such manner as to introduce incidental or collateral matters of a highly inflammatory nature and which had no place in the trial either as a matter of propriety or of fairness.
We do not pursue the details except to say that at points in this record it is difficult to tell whether the prosecution was for the attempted arson laid in the indictment, or whether for unlawful cohabitation, or whether the arraignment was for immorality in general.
Appellant's counsel vigorously objected to all this collateral and excessive matter, and repeatedly did so without avail. Incompetent evidence pressed upon the jury as this was, especially if of an inflammatory character, is presumed to have been harmful, and it is only when we can say with confidence that it had, in all probability or likelihood, no such effect that we may decline to reverse on account of it. This record does not present a case so conclusive of guilt that we may assume to say that what was done here was of no harm, with the result that the judgment must be reversed and the case remanded for a proper trial.
Reversed and remanded.