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Bell v. State

Supreme Court of Mississippi
Dec 10, 1962
147 So. 2d 624 (Miss. 1962)

Summary

In Bell v. State, 244 Miss. 867, 147 So.2d 624 (1962), the prosecutor called the defendant's wife to the stand, not knowing of their marital status.

Summary of this case from Simpson v. State

Opinion

No. 42414.

December 10, 1962.

1. Criminal law — trial — action of prosecuting attorney in calling defendant's alleged wife as witness — occurrence, harmless under circumstances of case.

Action of prosecuting attorney in calling witness who was allegedly defendant's wife, and to whose testimony defense counsel, in presence of jury, objected was not prejudicial error, where prosecutor did not know of any alleged marital ties between witness and defendant, and witness did not testify.

Headnote as approved by Lee, P.J.

APPEAL from the Circuit Court of Clay County; JOHN D. GREENE, J.

A.M. Edwards, Jr., West Point, for appellant.

I. The lower court erred in overruling the appellant's motion for a mistrial. Fairley v. State, 225 Miss. 371, 83 So.2d 278; Outlaw v. State, 208 Miss. 13, 43 So.2d 661; Wilson v. State, 204 Miss. 111, 37 So.2d 19; Sec. 1689, Code 1942.

G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

I. It was the defendant and not the State which first called the attention of the Court and the jury to the alleged fact that the witness and appellant were husband and wife. It is fundamental that appellant cannot complain of something for which he alone was responsible. Allegrezza v. State, 240 Miss. 382, 120 So.2d 780; Barnes v. State, 164 Miss. 126, 143 So. 475; Ellis v. State, 227 Miss. 440, 86 So.2d 330; Eslick v. State, 238 Miss. 666, 119 So.2d 355; Fairley v. State, 152 Miss. 656, 120 So. 747; McAfee v. State (Miss.), 40 So.2d 271; Ransom v. State, 149 Miss. 262, 115 So. 208.

II. If appellant or his counsel had previous knowledge of the relationship between this witness and the appellant, as they unquestionably did, it was incumbent upon appellant to ask the Court to retire the jury before the relationship was established. Buchanan v. State, 225 Miss. 399, 83 So.2d 627; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Lee v. State, 137 Miss. 329, 102 So. 296.


Albert Bell was convicted of the crime of manslaughter in the unlawful and felonious slaying of Joe Lenoir. From a sentence and judgment of four and one-half years in the state penitentiary, he appealed.

The State and defense versions were in conflict; the issue of guilt or innocence was properly submitted to the jury; and the verdict of the jury was fully supported by the evidence.

The appellant insists that he was entitled to a mistrial because of the following occurrence: As its third witness, the State called Jessie Louise Bell, who was asked her name and where she lived. At that juncture counsel for defendant said: "Your Honor please, we object and move for a mistrial in this cause. This is the wife of the defendant. THE COURT: Well, she hasn't testified to anything yet. MR. BUCK: She hasn't testified and I don't believe she is the legal wife of the defendant." The jury was retired, and, after considerable questioning, the court said that, since the witness would be withdrawn by the State, he would not rule as to whether she was in fact the wife of the defendant; and that the motion for a mistrial would be overruled.

In the early case of Finklea v. State, 94 Miss. 777, 48 So. 1, the prosecuting attorney called the defendant's wife to the stand as a witness for the State, and, in the presence of the jury, caused the defendant to object to her as being incompetent to testify. The objection was promptly sustained by the trial court. On appeal this Court held that the prosecutor's act was improper, but it declined to reverse the case for that error. In Carter v. State, 99 Miss. 435, 54 So. 734, the State's counsel asked the defendant, on cross-examination, if his wife would testify and whether he would object if the State should call her as a witness. The defendant's objection was promptly sustained. This Court, while saying that these questions were highly improper, declined to denominate this occurrence as reversible error. Again, in Bryant v. State, 179 Miss. 739, 176 So. 590, which was a bigamy prosecution, the introduction of the first wife, who was sworn but withdrawn before she testified against the defendant, was held to be harmless error.

The situation is different where the conduct of the prosecutor is in a taunting and reproachful manner, which can be construed as a criticism of the defendant for failure to put his wife on the stand or to let her testify. Such was the case of Outlaw v. State, 208 Miss. 13, 43 So.2d 661; and the error in such instance, was held to be reversible. See also Wilson v. State, 204 Miss. 111, 37 So.2d 19, to the effect that the trial court must give an opportunity for full inquiry into competency if the state of the marital relation is in dispute.

(Hn 1) The colloquy in the courtroom in this case clearly indicated that the district attorney was not trying to take advantage of the defendant. On the contrary, it appeared that he did not know of any marital ties between the witness and the defendant. Counsel for defendant apprised the court and jury of the alleged status. If he had simply asked for the jury to be retired and that the matter then be considered by the court, the jury would have known nothing about it. This occurrence, insofar as the State was responsible, could not have resulted in any harm to the defendant. The judgment must therefore be affirmed.

Affirmed.

McGehee, C.J., and Kyle, Ethridge and Rodgers, JJ., concur.


Summaries of

Bell v. State

Supreme Court of Mississippi
Dec 10, 1962
147 So. 2d 624 (Miss. 1962)

In Bell v. State, 244 Miss. 867, 147 So.2d 624 (1962), the prosecutor called the defendant's wife to the stand, not knowing of their marital status.

Summary of this case from Simpson v. State

In Bell v. State, 244 Miss. 867, 147 So.2d 624 (1962), the Court held that the prosecutor's conduct in Outlaw was "in a taunting and reproachful manner, which can be construed as a criticism of the defendant for failure to put his wife on the stand or to let her testify."

Summary of this case from Wideman v. State
Case details for

Bell v. State

Case Details

Full title:BELL v. STATE

Court:Supreme Court of Mississippi

Date published: Dec 10, 1962

Citations

147 So. 2d 624 (Miss. 1962)
147 So. 2d 624

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Wideman v. State

This Court held that such conduct and statements constituted reversible error. In Bell v. State, 244 Miss.…

Simpson v. State

His attorney objected to the questions, and the objection was sustained. In Bell v. State, 244 Miss. 867, 147…