Summary
stating that trials "should be decided on the facts and law, [free] of improper and irrelevant influences and possible prejudices"
Summary of this case from State ex rel. Counsel for Discipline of Neb. Supreme Court v. GastOpinion
No. 40717.
January 6, 1958.
1. Criminal law — robbery — evidence.
In robbery prosecution, testimony of deputy sheriff who investigated robbery that he took prosecuting witness into a store and asked him if he saw the two men who had robbed him and that prosecuting witness pointed out defendant and another was admissible to show that defendant was lawfully arrested upon a reasonable belief that he was the guilty person.
2. Criminal law — trial — racial prejudice argument of District Attorney.
Where person accused of robbery and victim of robbery were Negroes and District Attorney stated in his argument to jury that "if you don't stop them now, they will next be robbing white people," and accused's objection was overruled, and Trial Court did not instruct jury to disregard the statement, and State's case against accused was made out principally by testimony of victim, such argument constituted reversible error, since the jury had duty and right to evaluate such testimony and other evidence independently of the emotional factor of racial prejudice.
3. Criminal law — trial — improper prejudices not to be injected into trial of lawsuit.
A lawsuit should be decided on the facts and the law and improper and irrelevant influences and possible prejudices should not be injected into the trial.
Headnotes as revised by Ethridge, J.
APPEAL from the Circuit Court of Adams County; JAMES A. TORREY, Judge.
Berger, Callon Zuccaro, Natchez, for the appellant.
I. The statement by the District Attorney was highly prejudicial to appellant under the circumstances of this case. Cavanah v. State, 56 Miss. 299; Harris v. State, 209 Miss. 141, 46 So.2d 91; Herrin v. State, 201 Miss. 595, 29 So.2d 452; Pitts v. State, 211 Miss. 268, 51 So.2d 448.
II. The testimony of witness Ferrell corroborating the testimony of witness Hill was improper, and a reversible error. Cody v. State, 167 Miss. 150, 148 So. 627; Williams v. State, 79 Miss. 555, 31 So. 197.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The statement of the district attorney shown in the special bill of exceptions does not constitute reversible error under the circumstances of this case. Harris v. State, 209 Miss. 141, 46 So.2d 91.
II. The testimony of the deputy sheriff concerning the identity of the appellant by the prosecuting witness was not error. Branning v. State, 215 Miss. 223, 60 So.2d 633; LeFlore v. State, 197 Miss. 337, 22 So.2d 368; White v. State, 70 Miss. 253, 11 So. 632.
Appellant Joe Reed was jointly indicted with David Hawkins in the Circuit Court of Adams County of the robbery of Mack Hill. All of these parties are Negroes. Appellant obtained a severance, and after trial was convicted and sentenced to serve two years in the state penitentiary.
(Hn 1) Since the case must be reversed and remanded for a new trial, we will not dismiss the testimony and facts, except to make a comment with reference to the second assignment of error. Appellant complains of the overruling of his objections to parts of the testimony of Deputy Sheriff William Ferrell, who investigated the robbery. He took the prosecuting witness Hill with him into a store, where there were a number of Negro men. He stated that he asked Hill if he saw the two men who had robbed him, in response to which Hill pointed out Hawkins and Reed. Appellant contends this was an improper attempt to bolster Hill's testimony, and that the resulting search was illegal because without a search warrant. However, it was necessary for the State to show that appellant was lawfully arrested upon a reasonable belief that he was the guilty person. Testimony was admissible for that purpose and upon that theory.
(Hn 2) In his argument to the jury the district attorney said: "If you don't stop them now, they will next be robbing white people." Defendant's counsel objected to this statement. The objection was overruled. The trial court did not instruct the jury to disregard this statement. Defendant's motion for a mistrial was then overruled. The State concedes that this argument to the jury was error. However, it contends that it was not reversible error, because appellant's guilt is evident and it could not have influenced the verdict. With that we cannot agree. The State's case against Reed was made out principally by the testimony of Hill. The jury had the duty and right to evaluate that testimony and other evidence independently of the emotional factor of racial prejudice being injected into the case by the State's attorney. Moreover, the trial court overruled the objection, thereby in effect holding that the quoted argument was proper. (Hn 3) In a long line of cases dating back over fifty years, this Court has consistently condemned the injection into the trial of a lawsuit, which should be decided on the facts and law, of improper and irrelevant influences and possible prejudices. Most of those cases are cited and discussed in the annotation to 45 A.L.R. 2d 303, at pages 350-355 (1956). Recent decisions so holding are Herrin v. State, 201 Miss. 595, 29 So.2d 452 (1947), and Harris v. State, 209 Miss. 141, 46 So.2d 91 (1950). For this error the judgment will be reversed and the case remanded for a new trial.
Reversed and remanded.
McGehee, C.J., and Kyle, Arrington and Gillespie, JJ., concur.