Opinion
No. 28636.
June 9, 1930.
WITNESSES. In murder prosecution, requiring defendant to disclose on cross-examination that he did not testify on his committal trial held error ( Hemingway's Code 1927, section 1651).
The error was accentuated by his being made to say, also on the cross-examination, that he had disclosed to his attorneys his defense that he drew pistol for purpose of protecting himself from an unprovoked attempt on part of another to shoot him, and that deceased intervened and pistol was accidentally discharged, but that attorneys neither used him as witness on committal trial nor made any attempt to secure bail for him.
APPEAL from circuit court of De Soto county. HON. GREEK L. RICE, Judge.
Logan Barbee, of Hernando, for appellant.
Comment on the failure of the accused to testify by the district attorney constitutes reversible error.
Bunkley v. State, 27 So. 638, 70 Miss. 540; Smith v. State, 43 So. 465, 90 Miss. 111; Reddick v. State, 16 So. 490, 72 Miss. 1008; Yarbrough v. State, 12 So. 551, 70 Miss. 593; Sanders v. State, 18 So. 541, 73 Miss. 444; Boyd v. State, 36 So. 525, 84 Miss. 414; Gurley v. State, 57 So. 565, 101 Miss. 190; Prince v. State, 46 So. 537, 93 Miss. 263; Section 1578, Hemingway's Code 1917.
Geo. T. Mitchell, Attorney-General, and W.A. Shipman, Assistant Attorney-General, for the state.
Admitting, for the sake of argument, that the questions propounded to the appellant by the district attorney relative to whether or not he testified on the preliminary hearing, constituted technical error, yet under authority of the Wells case, 96 Miss. 500, the House case, 120 Miss. 436, and Rule 11 of this court, the judgment of the lower court will not be disturbed, a proper and reasonable verdict having been found by the jury in the trial court and the judgment based thereon is correct and proper.
Argued orally by J.W. Barbee, for appellant, and by W.A. Shipman, Assistant Attorney-General, for appellee.
This is an appeal from a conviction of murder. The evidence for the state made out a case of murder, but, according to the evidence for the appellant, he drew his pistol for the purpose of protecting himself from an unprovoked attempt on the part of one Horne to shoot him, when the deceased intervened and tried to take his (the appellant's) pistol from him, causing the pistol to be accidentally discharged and to fatally wound the deceased. The appellant was arrested after the killing and was committed by the magistrate to await the action of the grand jury. He did not testify on the committal trial, but did testify on the trial here being reviewed, and, in his cross-examination, the following questions and answers appear:
"Q. You came to trial here, Loyd. On the day of the trial here there wasn't a word said about Mr. Horne having tried to kill you? You came to trial here, the committing trial, and there wasn't one word said about Bill Horne having tried to shoot you?
"Objection: It is error for counsel to comment on defendant's failure to take the witness stand in any proceeding in court. Objection overruled. Exception.
"Q. You never said a word about it, did you? You have had this defense up your sleeve all this time? A. I was working under the advice of counsel.
"Q. You had told your counsel about it, hadn't you? A. Yes, sir.
"Q. And they bound you over without bond and you went back to jail? A. Yes, sir.
"Q. And you have stayed in jail from July till now? A. Yes, sir.
"Q. Your counsel, or you, have made no effort to get bond, have they? A. We had a preliminary hearing.
"Q. After that, you have made no effort to get bond — you or your counsel? A. No, sir."
Under section 1918, Code 1906, section 1651, Hemingway's Code 1927, the appellant should not have been required to disclose the fact that he did not testify on his committal trial, and the error in so doing was accentuated by his being made to say that he had disclosed his defense to his attorneys; but they neither used him as a witness on the committal trial nor made any attempt to secure bail for him. Because of the sharp conflict in the evidence, this error cannot be said to have been harmless.
Reversed and remanded.