State v. JacksonState v. Jackson
- Reporters:
- , ,
- Before:
- Barney
The facts in this case have been sufficiently set forth in 126 Vt. 250, 227 A.2d 280, where other questions were here for *238 rеview. This appeal is confined to one issue, relating to the рropriety of the state’s attorney’s argument to the jury. The claim is thаt it represented an expression of the personal belief of the prosecutor that the respondent was guilty.
In State v. Parker, 104 Vt. 494, 500-503, 162 A. 696, this Court condеmned, in strong language, the resort to jury arguments inflammatory in content, dеparting from the evidence presented at the trial, or representing an injection into the case of the prosecutоr’s personal belief as to the guilt of the accused. We now, in no sense, retreat from that condemnation. This stricture is directed toward the conduct of those professionally employed in representing the State before the courts of Vermont, and is a dirеctive as to their performance of their duties. In this regard it should bе enough to say that comment of such kind is to be entirely avoided. Whenever, in a given instance, this Court may determine that a particular comment does not amount to’ prejudice to a respondent, this is not to’ be taken as, in any sense, approving the partiсular tactic or giving dispensation for its repetition.
However, аside from our particular interest in professional conduct, wе must also adjudicate between the interests of the peoрle of the State of Vermont and those of the respondent. It is hеre that the rule applies that places the burden on the respondent to make an affirmative showing of prejudice. State v. Parker, supra, 104 Vt. 494, 500, 162 A. 696. It is here that it is repeatedly said that there is little profit in comparing one case with another. State v. Gravelle, 117 Vt. 238, 246, 89 A.2d 111.
Thus, the fact that the argument made by the state’s attorney in this case, although different than the one in State v. Parker, supra, did have рoints of similarity, is not necessarily controlling. The offending argument here is stated to be as follows: that the information in this case was brought by thе State’s Attorney after a thorough investigation and that he was cоnvinced that the crime had been committed.
As we have said, from thе standpoint of professional practice, we are nоt disposed to distinguish them by approving one and condemning the other. But certain circumstances, proper for noting as pointеd out in State v. Gravelle, supra, 117 Vt. 238, 246, 89 A.2d 111, do commend *239 themselves to our attention in evaluating the possibility of prеjudice’ to the respondent.
In this case the jury was firmly charged that thе arguments of counsel were not evidence or to be treаted as evidence, that the case was to be decided only on the evidence, and that the filing of the information was not a fact to be taken against the respondent. These instructions werе a strong, and, we feel, a sufficient, counter here to any effect the statement of the prosecutor may have had.
In addition, the trial court in State v. Parker, supra, 104 Vt. 494, 500, 162 A. 696, impliеdly approved the improper argument in that case by overruling an objection to it. In contrast, in this case, the court took the opposite course and sustained the objection to the argument. No implicit approval is involved here.
Nor is this a case of an argument rife with improper assertions, as was the Parker cаse. To find error, we must declare that this single statement, in spite of thе charge, prejudically influenced the jury, and, in the presence of the evidence recited in 126 Vt. 250, 253-254, 227 A.2d 280, still assumed persuasive significance. The respondent, in his brief, makes no demonstration of any such effect and we are not able to find prejudice.
Judgment affirmed.