130 Mo. App. 316 | Mo. Ct. App. | 1908
(after stating the facts). — The only error assigned by defendant is the misconduct of the prosecuting attorney in his address to the jury, and the failure of the court to rebuke him for. making the remarks quoted in the statement and for commenting on facts not in evidence. McLain was not produced as a .witness by defendant. He could have corroborated defendant’s evidence as to the sale, if there was a sale, and the failure of defendant to produce him, or to account for his absence, was a circumstance warranting proper comment by the prosecuting attorney in his address to the jury, but there was no evidence that McLain “had skipped the country,” and the prosecuting attorney traveled outside the record in making the statement to the jury, that he “had skipped the country,” and the comments following the statement were highly prejudicial to defendant. A proper rebuke would probably have cured the error, but none was forthcoming. Instead, when defendant’s counsel moved for rebuke, the prosecuting attorney retorted with the slurring phrase, “When you throw a stick among a pack of dogs, and one is hit he always yelps.” It is not only error for the State’s counsel in a criminal case, in his address to the jury, to comment on facts not in evidence, but it is a more grievous error for him to use language calculated to excite the prejudice or inflame the passions of the
