Bufkin v. State

98 So. 455 | Miss. | 1923

Ethridge, J.,

delivered the opinion of the court.

Appellant was convicted for selling intoxicating liquors, .and appeals from said conviction.

The alleged sales were made to Dempsey and Matthews, two vocational students at the Mississippi Normal College, who testified that they bought a quart of whisky from the appellant at his home in the country eight or nine miles from Hattiesburg, Miss., on the night of April 14, 1923; that this was the first time that they had ever seen the appellant to know him.

The appellant was the sole and only witness in his behalf and denied that he knew-the witnesses or had ever seen them until the case came up in.court. And denied that he ever sold whisky to them.

It appears.that during the progress of the trial one of the jurors asked how these Normal students knew to go to the defendant’s home to buy whisky. In the argument of the county prosecuting attorney he said:

“Some member of the -jury has asked me how these Normal students knew to go to the defendant’s home to buy whisky. I’ll answer that, gentlemen — all you have to do is to go down the streets of Hattiesburg, and any man will tell you that you can buy whisky from D. P'. Buf kin. ’ ’

The defendant objected and excepted to the said argument, and moved the court to disregard the said remarks, whereupon the court said: “Don’t consider that, gentlemen of the jury. The objection is sustained.’’

It is contended by the appellant that this argument, notwithstanding the instruction of the judge to the jury to disregard it, was reversible error, and cites Newman Lbr. Co. v. Norris, 130 Miss. 751, 54 So. 881; Harwell v. State, 129 Miss. 858, 93 So. 366; and Martin v. State, 63 Miss. 505, 56 Am. Rep. 813.

In the first case (Newman Lbr. Co. v. Norris, 130 Miss. 751, 94 So. 881), the statement of counsel was: “Who is the J. J. Newman Lumber Company? It is a corporation. It has taken yóur land. It has taken your timber. It has taken your homes. ”

On objection being made thereto, the court admonished counsel “to stay in the record.” It did not instruct the jury to disregard this remark. The court was careful to say of this, connected with other assignments of error:

“We would not be understood as holding that the giving of such an instruction would be reversible error in any and all cases, nor that such misconduct of counsel in the argument would be reversible error in any and- all cases, or that either one without the other would be sufficient to reverse this case.”

In the case of Harwell v. State, 129 Miss. 858, 93 So. 366, the case was reversed, but the statement was construed to be a comment on the failure of the defendant to take the stand.

In the case of Martin v. State, 63 Miss. 505, 56 Am. Rep. 813, the statement was: “ The defendant is a man of bad, dangerous, and desperate character, but I am not afraid to denounce the butcher boy, although I may, on returning to my home, find it in ashes over the heads of my defenseless wife and children.”

And the cause was reversed for the use of such language.

In that case the court said: “It may sometimes be a difficult and delicate duty for the court to confine counsel to legitimate argument,' but this is no reason why it should not be done when necessary, to prevent the perversion of law and justice. Like other difficult and delicate duties, it should not be shunned or disregarded by those upon whom it is imposed. Justice should not be sacrificed on mere sentiments of delicacy. No human being should be stamped with the marks and brands of a felon out of deference to privileges claimed and asserted against him, which in fact do not exist in law. ’ ’

There was no exception, and the judge in that case was not called u*pon, but this court held that it was the duty of the judge of his own motion to intervene in such cases.

The rule was however, modified in Cartwright v. State, 71 Miss. 824, 14 So. 526, in which the rule was laid down that exception must be taken at the time, and it was also said that improper or unwarranted remarks by the prosecuting attorney, not amounting to an extreme and intolerable abuse of the privilege of advocacy, will not cause a reversal of a verdict of guilty. And later the same rule was announced in Powers v. State, 83 Miss. 691, 36 So. 6.

It is difficult to draw the line in some cases when a case will and will not be reversed for improper argument. "Where the judge instructs the jury to disregard the argument and sustains the objection thereto, it will be presumed ordinarily that the jury disregarded the argument, and the cause will not be reversed. There are arguments, however, which will cause reversal, notwithstanding the objection has been sustained, and the jury instructed to disregard it. But this will only be applied in extreme eases.

In Perkins v. Guy, 55 Miss. 153, 30 Am. Rep. 510, the court held that counsel should not be' permitted in argument to the jury to state or comment on facts not proven, and the judge on his own motion should interpose and correct such irregularity, and if he does this in a case a new trial will not be granted because of such statements and comments made by counsel of prevailing party.

In Railroad Co. v. Carpenter, 104 Miss. 706, 61 So. 693, Ann. Cas. 1916a, 829, counsel for the plaintiff in his argument made the following statement:

“If a statement was made by a railroad man as to how and where an injury happened, every railroad man from Mobile to St. Louis would swear it to be exactly that way. If one of them would say a spike was driven in the third tie on a trestle, every railroad man would swear it was that way. If one of them would‘swear a man was hurt by a certain post, every railroad man would swear it was that way. ’ ’ *

Which argument was assigned for error in that case. Besponding to this assignment, the court said: “We do not approve of the language used by appellee’s attorney in the closing argument to the jury shown in the special bill of exceptions, but we do not believe that the trial court’s .failure to sustain the exception to such argument amounts to a reversible error. ’ ’

It is highly improper for an attorney in his argument to state facts not proven, or a statement of facts purporting to be, which are not proven, but if the judge promptly instructs the jury to disregard such comment we will assume that the jury obeyed the judge’s instruction and did not regard it, unless it affirmatively appears from the record to the contrary, or unless the statement is of such extreme prejudicial nature as to convince the court that it probably affected the result.

It is the duty of counsel representing the public in prosecuting to observe the law himself. The rights of the defendant are no less sacred than the rights of the public, and it is to be hoped that the admonitions of this court in the numerous cases in our reports will be studied and observed by all counsel undertaking to represent the public in such cases. The error complained of is not sufficient in our judgment to cause a reversal of the case.

It is next argued that the prosecuting attorney commented upon the evidence of the defendant, and stated to the jury that the appellant’s interest in the result of the trial was greater than the state’s witnesses ; that he had a direct personal interest in the case, in that he would be sent to prison if convicted. To which .argument exception was taken, but the court refused to sustain objection to this. We think it is within the privileges of the attorneys to comment upon the evidence. The very purpose of argument is to suggest conclusions that may be drawn from the evidence, which might not occur to the jury without argument, and, while the court cannot single out the defendant’s evidence by instruction and comment thereon, this does not apply to the attorneys in the case. They have the privilege of commenting on the evidence and drawing inferences or deductions therefrom, and may refer to the witnesses by name. And in our opinion no error was committed in making said argument.

It is said also that we should reverse the case because one of the witnesses testified to two sales, one on the 14th and the other on the 21st, and that the defendant had been tried upon the other sale on the 21st, and in that trial evidence of both sales was introduced, and that the other cause is now pending in this court, being case No. 23681. 98 So. 455. There was no plea of former jeopardy interposed in this record, and no proof introduced to show any other conviction or acquittal. And in order to avail •of former jeopardy it must be pleaded. Ball v. State, 67 Miss. 358, 7 So. 353; Logan v. State (Miss.), 40 So. 323; State v. Ireland, 89 Miss. 763, 42 So. 797; Miazza v. State, 36 Miss. 613; 2 Morris’ State Cases, 1205. We have no knowledge of a judicial nature of anything outside of the record in this case that may have occurred, and can have none except from the record. We will not and cannot look to other cases pending in this court to supplement the record before us, unless in cases .provided by law as the record on a former appeal in the same cause.

The judgment will therefore be affirmed.

Affirmed.