93 So. 366 | Miss. | 1922
delivered the opinion of the court.
The appellants were' tried and convicted for the manufacture of intoxicating liquors, and each sentenced to serve a term in the state penitentiary. It appears from the state’s evidence that the defendants were arrested in a thicket near the residence of one of them, having a crude still in which was fermented mash, and that'a fire had been kindled under the still and was burning at the time of the arrest, and that the bucket under the apparatus contained intoxicating liquors, which had run through a process of distillation, and that such liquor was intoxicating. The state witness did not taste the liquor, and testified that he would not taste it, but testified that it was whisky. It was also in proof for the state that the defendant Harwell confessed to the making of intoxicating liquors in the presence of the defendant Payne. The testimony for the appellants consisted of the testimony of Harwell, for Payne did not testify. Harwell testified that they had not distilled any liquor; that they had just
“Gentlemen: I can imagine what took place in that room there, when these defendants went in there with their attorneys, after the state had rested its case. This is about Avhat occurred: The attorneys said to the defendants: ‘Boys, the state has made out a terribly strong case against you, and it looks like they have got you. What have you to say for yourselves?’ Then I imagine the big fellow (referring to Henry Payne, who did not take the stand in his own behalf) said a/I know of nothing I could say to save myself, so I won’t go on’ (meaning on the stand). Then I imagine the little fellow, Harwell, said: Well, I am a young man, twenty-two years old. I cannot make it no worse, so I will take a shot at it.’ ”
This is assigned for error, and it is urged that it must reverse the case as to both defendants. The defendants were jointly indicted and jointly tried, and were defended by common counsel. Section 1918, Code of 1906 (section 1578, Hemingway’s Code), reads as follows:
“The accused shall be a competent witness for himself in any prosecution for crime against him; but the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel.”
The argument of the district attorney was in direct violation of this section, and it is clear, under all the authorities, that the judgment must be set aside at least as to the defendant Payne. Does the argument avoid the conviction as to Harwell? Harwell testified in his own behalf, but he did not introduce his codefendant, Payne, and, indeed, could not introduce Payne, or force him to testify as a witness, any more than the state could introduce him and force him to testify. In other words, both the state and Harwell were equally powerless to use the testimony of Payne, unless Payne consented. It would appear from
This court has dealt in many cases with improper arguments, and has reversed many cases because of improper arguments by the district attorney, drawn from facts not in evidence, or from stating facts which were not in evidence. In Kelly v. State, 113 Miss. 850, 74 So. 679, the court reversed the conviction because the district attorney jn argument characterized the accused as a “bad negro,” although the evidence did not support such charge, and further stated that he, the district attorney, had never prosecuted an innocent person and that he investigated the case. In dealing with this argument, the court, speaking through Judge Sykes, said:
“While great latitude is allowed in the argument of counsel, at the same time these arguments must he based upon the testimony introduced in the case. The portion of the above-quoted argument was highly prejudicial to the accused. All of it was improper. It was not an argument to convict the defendant upon the testimony, but rather an appeal to the prejudice of the jury to convict*863 him on general principles. There was no testimony whatever introduced to show that the accused was a man with a bad reputation for peace and violence; yet the district attorney in this argument characterizes him as ‘a mean negro — a bad negro.’ ”
The court then quotes from Martin v. State, 63 Miss. 505, 56 Am. Rep. 813, condemning a similar argument, and, after quoting, said: “The last paragraph of the above-quoted argument of the district attorney was perhaps the most prejudicial and improper part. By it he told the jury that he never prosecuted an innocent party; that he ahvays investigated the cases - thoroughly, as he had done in this case; and that he had. gotten a statement from Rose Hill, or Rosa Dearing, who was also charged with the murder, and had found that she was not guilty of it. . . . There Avas no testimony showing the facts about the private investigation made by the district attorney in' this case and of his conference with Rosa Dear-ing, and the facts and reasons why he nolle pros’d the case against her and Lucile Hill. The state would not have been permitted to introduce this testimony had it tried. Consequently the argument of the district attorney amounted in effect to his unsworn testimony, which was incompetent. It further had the effect of giving the jury the benefit of his private opinion as to the guilt of the accused, not based upon the testimony introduced before the jury, but based upon his opinion resulting from his private investigation of the case.”
In Railroad v. Weinstein, 99 Miss. 515, 55 So. 48, the court held that the comment of counsel upon failure of defendant to produce certain persons as witnesses, wherein counsel stated that the failure to produce such person gave the jury the right to infer that their testimony Avould have been adverse to the defendant, was reversible error, and that the absent parties Avere equally accessible to plaintiff and defendant, and that juries tried cases on the evidence before them, and not on testimony that either they or counsel may imagine some absent person might
In matters of argument counsel necessarily must have a wide latitude. His illustrations may be as varied as the resources of his genius; his argumentation as profound as learning and logic can make it. He may give wing- to his wit and play to his imagination, so long as he deals Avith the evidence in the case and the deductions to be drawn from the testimony; hut he should- never alloAV himself to imagine facts not in evidence, nor alloAV his wit to Aving him out of the record.
For the errors indicated, the judgment Avill be reversed, and the cause remanded'for a ne/w tidal.
Reversed and remanded.