150 S.E. 353 | N.C. | 1929
Criminal prosecution tried upon an indictment charging the defendant with the murder of Estelle Godfrey.
On the night of 24 November, 1928, near Matthews, N.C. there was a collision between defendant's automobile and another car in which the deceased was an occupant. The driver of each machine claimed that the other was responsible for the collision, and there is evidence that the defendant was drinking at the time.
The attorney for the private prosecution, in his argument to the jury, used the following language:
"Gentlemen of the jury, drunken men are driving their cars all over the highways of North Carolina, and are running over people and killing them, and have no regard for human life. I argue to you that drunken drivers on our highways must be stopped. I contend to you, gentlemen of the jury, that this man has operated his automobile in a drunken condition, and I appeal to you to put a stop to transporting whiskey when operating automobiles on the highways. Drunken drivers of automobiles have killed others on this same highway and have not been punished for it."
Counsel for the defendant immediately objected and asked that the jury be instructed not to consider the argument that others had been killed on this same highway by drunken drivers, as there was no evidence to support such an argument, but the court simply replied: "I cannot tell a lawyer what to say and what not to say, unless he goes beyond bounds. Proceed with the argument and argue the evidence in the case before the jury." Exception by defendant.
Verdict: Guilty of manslaughter. *730
Judgment: Imprisonment in the State's prison for a term of not less than five nor more than seven years at hard labor.
The defendant appeals, assigning errors.
After stating the case: It is conceded by the Attorney-General that counsel for the private prosecution went outside the record and overstepped the bounds in appealing to the jury to convict the defendant because others had been killed by drunken drivers on this same highway and no one had been punished for it. S. v. Evans,
In Washington v. State,
To like effect is the holding of the Supreme Court of Indiana inFerguson v. State,
The State ought not to rely upon a sacrificial altar for the observance or enforcement of its laws. S. v. Green, ante, 624; S. v. Tucker,
The defendant is entitled to a new trial, and it is so ordered.
New trial.