65 Miss. 93 | Miss. | 1887
delivered the opinion of the Court.
In a case where the slightest doubt could be entertained of the guilt of the accused, we should feel it our imperative duty to vacate a judgment of conviction, where the prosecuting attorneys had resorted to the practices shown in this record.
One of the counsel for the State was permitted in his argument to tell the jury that on a former trial the jury “ were not ■out more than one minute in their deliberations, when they returned into court with a verdict of guilty.” To the statement the defendant promptly interposed his objection, which the court refused to sustain, because, as the court remarked, counsel for the defendant had in his opening argument appealed to a “ higher law ” than that of the State, and had invoked the jury to acquit regardless of the facts.
If it were permissible by a system of cancellation to cure one error by the existence of another, which it is not, the factors -cancelled should be equivalent, and that an appeal to a “ higher law ” by one counsel is the equivalent of the statement of an illegal, irrelevant and prejudicial fact by another, is not to be ascertained with that accuracy that should obtain in judicial proceedings.
But this was not the only infringement of the right of the defendant. In his concluding argument the district attorney, over the objection of the defendant, and in spite of the twice repeated direction of the court to desist, persisted in reading to the jury, ■as evidence against the accused, certain portions of the written testimony of a witness which had not been put in evidence. Thus each of the counsel for the State invoked against the accused prejudicial facts not in evidence; such conduct deserved the ■severest censure, and should have drawn from the court an instant and sufficient corrective.
In Lamar v. The State, the error went to the very organization and competency of the jury, the triers of the issue joined. A juror, after evidence had been received, was attacked by the district attorney on a charge of having previously expressed his determination to get upon the jury and acquit the defendant. The juror was, as was said in that case, “ thereby placed under bonds, as it were, to go against the prisoner in order to free himself from the charge made against him.” The point of that decision was that the act of the State, in attacking the juror, invalidated the panel, and though the defendant was clearly guilty the judgment was not permitted to stand, becaxise it was not supported by the verdict of any jury competent to try the issue joined between the accused and the State.
In Martin against the State, the conviction rested principally upon circumstantial evidence sufficiently strong to uphold the verdict; but not so conclusive as to enable us to confidently affirm that a verdict of guilty ought and must have followed from the competent evidence alone.
In neither of these cases did we depart from the rule that, where the guilt of the accused is clearly and incontrovertibly shown by his own testimony, a mere error in the proceeding will not call for a reversal. Thomas v. The State, 61 Miss., 60. The appellant was examined as a witness in his own behalf, and by his own statement it is clearly and unequivocally shown that he committed the crime of which he has been convicted. He in effect avows his guilt as conclusively as though he had pleaded guilty to the indictment. Under such circumstances, though manifest error has intervened, the judgment should be affirmed.
