150 S.W.2d 46 | Ark. | 1941
A jury in the Clark circuit court convicted appellant, Effie Todd, on the charge of assault and battery and fixed her punishment at a fine of $1. Appellant has appealed.
During the closing argument on behalf of appellant, the record reflects the following colloquy:
"Mr. Brown (arguing the case to the jury): It would be a shame to convict the defendant on this evidence and subject her to working sixty or ninety days on the County Farm. Mr. Crawford (deputy prosecuting attorney): Gentlemen, don't worry about her having to work out a fine on the County Farm; she will sell enough whiskey to pay the fine. Mr. Brown: Your Honor, I wish to ask at this time for a mistrial because of the highly prejudicial statement which the prosecuting attorney has just made. Court: Overruled. Gentlemen of the jury, you will not consider that statement. Mr. Brown: Save my exceptions."
The parties have stipulated that the charge against appellant does not involve the sale of liquor and that there is no testimony in the record tending to connect appellant with the sale, possession or drinking of any kind of intoxicants. Appellant urges here but one ground for reversal and that is that the trial court erred in refusing to declare a mistrial on account of the prejudicial and improper argument of the prosecuting attorney. We think this contention must be sustained.
We said in Crow v. State,
Here it is conceded that there is no evidence, in the record, that appellant had had any connection with drinking, or the sale of intoxicating liquor. For counsel representing the state to make the unqualified statement *289 that "she will sell enough whiskey to pay the fine" was highly improper and prejudicial to the right of appellant to that fair and impartial trial guaranteed to her under the Constitution of this state (art. II, 10). The court's mild admonition to the jury not to consider the statement was not sufficient, in our opinion, to remove the damage done. The effect of the argument was to charge appellant with being engaged in the illegal sale of liquor, commonly called "bootlegging," and a charge that was not true, and which was but emphasized by the failure of the prosecuting attorney to offer to withdraw it.
Even though appellant's punishment was fixed at the nominal amount of $1, when under the statute it might have been as much as $200 (2959, Pope's Digest), we are not prepared to say that the jury might have convicted appellant without this improper argument.
In the case of German-American Ins. Co., et al. v. Harper, et al.,
In Hughes v. State,
We also quote from the opinion in Hogan v. State,
It is our view, therefore, that counsel's argument was highly improper and prejudicial to appellant's rights, and that the error was not cured or removed by the mild admonition of the court to the jury not to consider it. Nor do we think that the argument in question was in answer to the statement of appellant's attorney and therefore, invited error.
Appellant was being tried on the charge of assault and battery defined (2957, Pope's Digest) as "the unlawful striking or beating of another," the punishment for which is a fine only.
The statement of appellant's attorney that it would be a shame to convict her on the evidence and subject her to working sixty or ninety days on the County Farm was, at most, an opinion and did not warrant the highly improper and prejudicial remark of the state's counsel, which was in no sense a proper answer to this statement.
For the error indicated, the judgment is reversed and the cause remanded.
MEHAFFY, J., dissents. *291