Opinion
No. 30814.
October 2, 1933.
1. CRIMINAL LAW.
Instruction to convict defendant if codefendant assaulted and robbed prosecuting witness, and defendant was present, aided, and abetted robbing, held not error.
2. CRIMINAL LAW.
Prosecutor's comment, in robbery prosecution, that defendant and other young bucks did not come to court to testify, held reversible error, though prosecutor had not finished statement when interrupted and had intended to add additional words.
APPEAL from the Circuit Court of Adams County.
D.C. Bramlette, of Woodville, for appellant.
The comment on failure of appellant to testify was error.
Section 1530, Code of 1930, provides that the accused shall be a competent witness for himself in any prosecution for crime against himself; but the failure of the accused, in any case, to testify shall not operate to his prejudice, or be commented on by counsel.
Appellant did not testify. The county attorney of Adams county in making the opening argument for the state used the following language: "Defendant and other young bucks — not one of them came here and testified. . . .;" whereupon counsel for appellant immediately objected.
We respectfully submit that a reversal of this case is inescapable on account of the remarks of the attorney for the state.
Harwell v. State, 129 Miss. 858, 93 So. 366; Guest v. State, 158 Miss. 588, 130 So. 908; Gurley v. State, 101 Miss. 190, 57 So. 565; Harris v. State, 96 Miss. 379, 50 So. 626; Prince v. State, 93 Miss. 263, 46 So. 537; Drane v. State, 92 Miss. 180, 45 So. 149; Smith v. State, 87 Miss. 627, 40 So. 229; Hoff v. State, 83 Miss. 488, 35 So. 950; Sanders v. State, 73 Miss. 444, 18 So. 541; Reddick v. State, 72 Miss. 1008, 16 So. 490; Yarbrough v. State, 70 Miss. 593, 12 So. 551; Winchester v. State, 142 So. 455.
The court below erred in granting the following instruction: "The court instructs the jury for the state of Mississippi, that if you believe beyond a reasonable doubt from the evidence in this case that Ethel Reed did then and there unlawfully and feloniously make an assault upon Mrs. Lizzie Peters and did then and there feloniously, by violence to the person of Mrs. Lizzie Peters and from the person of and against the will of Mrs. Lizzie Peters, did take the sum of thirty-four dollars good and lawful money of the United States, the personal property of the said Mrs. Lizzie Peters, with the intent to unlawfully and feloniously take, steal and carry away, and that the defendant, Buster Gibbs, was then and there present, aiding, abetting, assisting and encouraging the said Ethel Reed, in the said felonious robbing of the said Mrs. Lizzie Peters, then he is as guilty as said Ethel Reed and the jury should return a verdict of guilty." W.D. Conn, Jr., Assistant Attorney-General, for the state.
A special bill of exceptions shows that the county attorney of Adams county, in the opening argument to the jury in this case, made the following statement: "Defendant and other young bucks — not one of them came here and testified." At this point appellant objected, objection sustained, and the county attorney directed by the court to stay within the record. Appellant then moved for a mistrial, which was overruled.
It is not permissible to single out sentences, disconnected with the context, and, where objection is taken to statements, enough of the context ought to be embraced in the bill of exceptions to enable the court to know what a fair construction of the statement would mean.
Carter v. State, 140 Miss. 265, 105 So. 514; McLeod v. State, 130 Miss. 83, 92 So. 828; Blackwell v. State, 161 Miss. 487, 135 So. 192.
Counsel says that although appellant was indicted as a principal, his conviction was asked solely as an accessory. On this I take issue with counsel, because the indictment shows he was charged as a principal and the instruction calls for his conviction as a principal — one aiding and abetting in the robbery and not as an accessory, either before or after the fact.
Persons who assist, aid and abet others in the commission of a crime are equally guilty and may be tried as principals; or present, consenting to the commission of an offense, and doing any act which is an ingredient of, or immediately connected with it, or leading to its commission, is a principal.
Kitrell v. State, 89 Miss. 666, 42 So. 609; McCoy v. State, 91 Miss. 257, 44 So. 814; Crawford v. State, 133 Miss. 147, 97 So. 534; Dedeaux v. State, 125 Miss. 326, 87 So. 664.
Buster Gibbs was convicted for the crime of robbery and was sentenced to serve a term of one year in the state penitentiary, from which conviction he appeals. He was indicted jointly with Ethel Reed for robbing one Mrs. Lizzie Peters, an aged woman. As the prosecuting witness, Mrs. Peters testified positively to the robbery, and that it was participated in by both Gibbs and Ethel Reed, and that they took from her person the sum of thirty-four dollars, and committed an aggravated assault upon her, knocking her teeth down her throat, and inflicting numerous injuries upon her.
There was considerable testimony as to what occurred subsequent to the robbery, but the evidence to sustain a conviction is, in our opinion, ample, and the verdict of the jury must stand so far as the sufficiency of the evidence is concerned.
The state secured the following instruction: "The court instructs the jury for the state of Mississippi: That if you believe, beyond a reasonable doubt, from the evidence in this case that Ethel Reed did then and there unlawfully and feloniously make an assault upon Mrs. Lizzie Peters and did then and there feloniously, by violence to the person of Mrs. Lizzie Peters and from the person of and against the will of Mrs. Lizzie Peters, did take the sum of thirty-four dollars good and lawful money of the United States, the personal property of the said Mrs. Lizzie Peters, with the intent to unlawfully and feloniously take, steal and carry away, and that the defendant, Buster Gibbs, was then and there present, aiding, abetting, assisting, and encouraging the said Ethel Reed, in the said felonious robbing of the said Mrs. Lizzie Peters, then he is as guilty as said Ethel Reed, and the jury should return a verdict of guilty."
We find no fault with this instruction and it is supported by the evidence.
But, this case must be reversed because of the comment made by the county prosecuting attorney upon the failure of the defendant to testify, as follows, "Defendant and other young bucks, not one of them came here and testified," to which objection was made and sustained by the court, and the jury directed to disregard same. It is true that the county attorney testified that he intended to add, after the words "and testified," that these three witnesses did not testify that Mrs. Peters accused Ethel Reed, but still Ethel Reed was guilty, and that they knew it.
During the trial the defendant, Buster Gibbs, was brought before the jury with three other young negroes, to see if Mrs. Peters could identify Gibbs. She failed to identify him as being the one who committed the crime, at that time; but when Buster Gibbs was brought before the jury alone, she identified him as being the one who committed the crime.
It is manifest that the jury understood the remarks contained in the bill of exceptions — the reference to the failure of these parties to testify, including the defendant, Gibbs. When objection was made, counsel did not proceed with his statement, or explain to the court his purpose to continue, and if he had, still his words in that connection would have been unauthorized and would constitute reversible error. Therefore, the judgment must be reversed and the cause remanded for a new trial.
Reversed and remanded.