| Fla. | May 26, 1920
Hattie Wright was convicted of assault with intent to commit murder in the second degree, in the Criminal Court of Record of Hillsborough County, on an information charging her with assault with intent to commit murder in the first degree.
It appears from the testimony that Pierce Harwell, an eighteen-year-old white boy, got on a street car and occupied one of the seats set apart for negro passengers. Hattie Wright, a negro woman, came into- the car and sat down along side of him. He told her to move, and upon her refusal he pushed her from the seat; she returned and
This much of. the evidence is essential to the proper determination of the question raised by the sixth and seventh .assignments of error which are based upon certain statements made by the county solicitor in presenting the case to the jury, and the refusal of the court to instruct the jury not to consider such statements when so requested by counsel for the defendant.
The proceedings complained of are thus set out in the bill of exceptions:
“And thereupon, the evidence having been closed, the case was argued and presented to the jury by respective counsel, and in the course of the argument on behalf of the State by Mr. Chancey, the County Solicitor, he stated to the'jury, 'if the prosecuting witness, Pierce Harwell, was sitting in a seat in the car and the defendant came*833 in and sat down beside him and didn’t get up when he told her to, he had a right to make her get up;’ at which point in the argument, Mr. Macfarlane interrupted Mr. Chancey, and made the following objection to the court: Defendant’s counsel object do the County Solicitor laying down to the jury as the law, that the fact that this defendant sat down in a seat by the pi*osecuting witness gave him the right to push her from the seat, and .asks the court to instruct the jury not to consider any such statement of the County Solicitor.
“By the Court:
“The Court will instruct the jury as to the law govern-in the case.
“By Mr. Chancey:
“I argue as law, that if he was sitting down there and she come and sit by him and he objected to it, that she is not free of fault and can’t invoke the law of self-defense.
“Mr. Macfarlane again excepts to the statement of the County Solicitor, and.asks the court to instruct the jury not to consider it.
“By the Court:
“Proceed, and the Court will instruct the jury as to the law governing the case.
“To which ruling of the Court the defendant, by counsel, then and there excepted.
“By Mr. Chancey:
“I submit she can’t invoke the doctrine of self-defense.
“By Mr. Macfarlane:
“I again take exceptions to the Court permitting the County Solicitor to make such statements to the jury as being the law in the case, and doing it in the hearing of the court.
-“By the Court:
“Objection overruled.
*834 “To which ruling of the Court the defendant, by counsel, then and there excepted.”
The statements by the County Solicitor were not proper matters of argument, and not a correct statement of the law. The bill of exceptions shows that the improper statements were repeated twice after they had been called to the attention of the court, and the court requested to instruct the jury not to consider them.
The judge refused to do this and permitted the counsel to repeat the misleading and prejudicial statements. It is true that in its general charge which covered twelve type-written pages, the jury was correctly instructed on the law of self-defense, but the incorrect and improper statements by the County Solicitor were permitted by the court to be considered by the jury as if they were sound, up to the time he gave his general charge. This did not remove from the minds of the jury the erroneous impression that was necessarily conveyed by the language of the County Solicitor and the refusal of the Court at that time to instruct the jury that that'was not the law, and that they must not consider it.
It is quite well settled in this State that statements by the prosecuting attorney that are entirely outside of evidence and cannot properly be inferred from the evidence adduced, and that tend to prejudice the defendant, should not be permitted, and that when such statements are brought to the attention of the court it is the duty of the judge to stop him at once, and if he fails to do so when requested, and the impropriety is great and exception is duly taken, it is ground for a new trial. Killins v. State, 28 Fla. 313" court="Fla." date_filed="1891-06-15" href="https://app.midpage.ai/document/killins-v-state-4914361?utm_source=webapp" opinion_id="4914361">28 Fla. 313, 9 South. Rep. 711; Bradham v. State, 41 Fla. 541" court="Fla." date_filed="1899-06-15" href="https://app.midpage.ai/document/bradham-v-state-4915377?utm_source=webapp" opinion_id="4915377">41 Fla. 541, 26 South. Rep. 730; Clinton v. State, 53 Fla. 98" court="Fla." date_filed="1907-01-15" href="https://app.midpage.ai/document/clinton-v-state-4916806?utm_source=webapp" opinion_id="4916806">53 Fla. 98, 43 South. Rep. 312.
The judgment is reversed.