Turner v. State

48 So. 409 | Miss. | 1909

•Whitfield, O. J.,

delivered the opinion of the court.

During the progress of the trial of this case, which is an exceedingly close one on its facts, special counsel employed to assist the district attorney in the prosecution, in the course of his argument to the jury, used the following language: “She says-that she has witnesses to prove her good character. Why didn’t old Sarah Turner bring her witnesses here to testify to her good character, if she has witnesses to prove her good character ? The state cannot introduce evidence of her bad character until the defendant has put in her good character.” To this the defendant then and there, excepted. The court does not seem to have sustained the exception or to have directed counsel to stop that line of argument; nor did the court give a single instruction directing the jury not to regard this statement.

In 12 Cyc. 578, it is said: “So it is prejudicial error entitling the defendant to be granted a new trial to allow counsel for the prosecution in his argument to the jury to comment upon the failure of the defendant to offer evidence of his previous character.” In McKnight v. United States, 97 Fed. 208, 38 C. C. A. 115, it is said: “Such argument made over objection with the consent of the court, in effect destroys the presumption in favor -of the accused, and allows the jury to infer that his character is bad, because he has not produced proof to the contrary.”

To the same effect are many other authorities. Indeed, the proposition is elementary. We would not in a case where the right result had manifest] y been reached, where guilt was overwhelmingly shown, reverse for this sort of error alone ;(1 but in this case the guilt is not so shown, and it is not at all clear from the testimony that the defendant is guilty of the crime charged.

Reversed and remanded.