Summary
In Conn, supra, the Court held the defendant was not entitled to an instruction in the form set forth above, but was entitled to an instruction that he was a competent witness in his own behalf and that jurors had no right to disbelieve him merely because he was the defendant, and his testimony was entitled to such weight, faith, and credit as the jurors think proper to give it.
Summary of this case from Baker v. StateOpinion
February 14, 1949.
1. Criminal procedure — when defendant has testified in his own behalf — comment by prosecution.
When a defendant has testified in his own behalf, prosecuting attorney may, within reasonable limits, comment upon his demeanor in the presence of the jury, as well as upon his testimony. Hence in such case a comment by the district attorney that the "defendant sits there looking at the ground but can't look decent people in the eye" is not good reason for a mistrial.
2. Criminal procedure — demeanor of accused — duty of jury to observe and consider.
When the defendant has testified in his own behalf, it is the duty of the jury to observe his demeanor in the presence of the jury and to weigh the same in connection with his testimony.
3. Criminal procedure — instruction as to weight to be given defendant's testimony as a witness in his own behalf.
An accused is entitled to an instruction that he is a competent witness in his own behalf and that the jurors have no right to disbelieve him merely because he is a defendant, and that his testimony is entitled to such weight, faith and credit as the jurors think proper to give it, — and this is the extent of the rule; wherefore the court properly refused an instruction which told the jury that they must believe his testimony to be the truth if there is no other reason to disbelieve him than the fact that he is the defendant.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, J.
Bidwell Adam, for appellant.
The learned circuit judge declined and refused to grant to the appellant, Douglas Conn, the instruction which was numbered Instruction Number 4 (quoted in full in the opinion of the court).
The same instruction, with the following additional words was offered by the defendant in the case of Thompson, et al. v. State, 158 Miss. 121, 130 So. 112-113: "And thereupon promptly acquit the defendant". The circuit judge in that case modified the instruction by striking out the concluding phrase: "And thereupon promptly acquit the defendant". We think that since this instruction eliminated the language: "And thereupon promptly acquit the defendant", it was an instruction that the appellant was clearly entitled to receive.
Another point which we specially want to call to the court's attention is that the court erred and refused to enter a mistrial when the district attorney, in his concluding argument to the jury, stated as follows: "The defendant sits there looking at the ground, but can't look decent people in the eye," as reflected by a Special Bill of Exceptions which was signed by the circuit judge.
We take the position in this case that it was a fatal error where the issues of fact were as close as they were in this case for the able district attorney to employ such highly prejudicial language in his concluding argument to the jury.
The failure of the court to sustain the defendant's motion for a mistrial was a fatal error, and the fact that the learned circuit judge stated to the jury to disregard the remarks of the district attorney did not cure the vice or the evil, or remove the prejudice.
In support of our position, we cite the following cases: Kelly v. State, 113 Miss. 850, 74 So. 679; Matthews v. State, 148 Miss. 696, 114 So. 816; Floyd v. State, 166 Miss. 15, 148 So. 226; Collins v. State, 100 Miss. 435, 56 So. 527.
In the case at bar, a motion for a mistrial was made in due time, and this motion was overruled. We reiterate and repeat that after the damage had been done and the remarks made, little if any good is done by the trial judge stating to the jury to disregard the remarks. It opens the avenue of opportunity which the law never contemplated the prosecuting attorney should have. It extends to him an invitation literally to blast and cut to pieces the defendant in his closing argument, and to say that a remark from the bench by the circuit judge to disregard that remark, only after counsel for the defendant moves for a mistrial, is indeed opening wide the gates of prosecution. We insist that this case should be reversed. This court should definitely say that when the district attorney steps across the line of proper argument and discussion of the facts of the case, and deals in personalities, and comments upon the position of the defendant at the time the argument of the district attorney takes place, and literally points the defendant out as an object of ridicule and abuse, then the foundation of the rights guaranteed to every citizen in the land is imperilled and violated.
R.O. Arrington, Assistant Attorney General for appellee.
The court committed no error in refusing the instruction about which appellant has complained. The court sufficiently dealt with this matter in the recent case of Coleman v. State, 22 So.2d 410, (not officially reported).
The next and final assignment of error argued is that the court erred in not sustaining motion for a mistrial due to the argument of the district attorney as evidenced by special bill of exceptions. The special bill of exceptions shows that counsel for the appellant objected to the remarks and moved for a mistrial. The court overruled the motion and instructed the jury to disregard the remarks of the district attorney. The record herein shows that the appellant testified in his own behalf. When the appellant took the stand to testify in his behalf he took it for all purposes and the court has held that the prosecuting attorney had a right to comment upon his demeanor, criticize and analyze his testimony. Further, the jury had the right, and no doubt did, observe the appellant throughout the trial and the remarks of the district attorney could not have been prejudicial to the appellant. Furthermore, the court instructed the jury to disregard the remarks of the district attorney. In Blackwell v. State, 161 Miss. 487, 135 So. 192, the court held: "A prosecuting attorney can comment upon the evidence in the case and may critize the same and call witnesses by name and deduce from the evidence such conclusions as he thinks are proper, although the trial judge could not grant instructions commenting on the evidence or singling out the witnesses. A different rule applies to the attorneys in the case from that which applies to the judge in such cases." 161 Miss. 488, Syllabus 3.
The proof of the State in this case was overwhelming, the only conflict being that the appellant denied his guilt which presented a question for the jury, McMillan v. State, 198 Miss. 179, 21 So.2d 586, and authorities cited therein.
Conn was convicted and sentenced for receiving personal property which he knew had been stolen and feloniously taken from another. Section 2249, Miss. Code 1942. He claims the Court committed two reversible errors.
(Hn 1) One was the refusal of the Court to grant a mistrial because of the following remarks of the district attorney in his closing argument to the jury: "The defendant sits there looking at the ground, but can't look decent people in the eye". The Court sustained an objection to these remarks and instructed the jury to disregard them but refused to grant a mistrial. The defendant had testified in his own behalf. In such case the prosecuting attorney has the right, within reasonable limits, to comment upon and draw pertinent conclusions from his demeanor, analyze and criticise his testimony. Blackwell v. State, 161 Miss. 487, 135 So. 192, 137 So. 189. (Hn 2) It is also the duty of the jurors to observe his demeanor and weigh his evidence. We do not think this action of the prosecuting attorney went beyond the bounds of propriety — certainly not to the extent of requiring a mistrial.
Appellant requested, and was refused, this instruction:
"The Court instructs the jury for the defendant that this defendant is a competent witness in his own behalf and you have no right to discard his testimony, or look upon his testimony with suspicion, merely because he is the defendant in this case, and that if you have no other reason to disbelieve him, then the fact that he is the defendant, then you must believe his testimony to be the truth." He relies upon Thompson v. State, 158 Miss. 121, 130 So. 112, 114. In that case defendants requested this instruction:
"The court instructs the jury for the defendants that the defendants are competent witnesses in their own behalf and that you have no right to discard their testimony, not either of them, or to look upon their testimony with suspicion merely because they are the defendants in this cause, and that if you have no other reason to disbelieve them than the fact that they are the defendants, then you must believe their testimony to be the truth, and thereupon promptly acquit the defendants." The court modified the instruction by striking therefrom "and thereupon promptly acquit the defendants", and, so modified, granted the instruction. That holding was modified in Coleman v. State, Miss., 22 So.2d 410, 411. In that case the instruction was refused because of the phrase "and it is your duty to believe every word she (defendant) said while so testifying, if you have no other reason to disbelieve her than that she is the defendant in the case." The Court said the instruction is confusing and is on the weight of the evidence. (Hn 3) The opinion noted that the accused is entitled to an instruction that he is a competent witness in his own behalf and that the jurors have no right to disbelieve him merely because he is a defendant, and his testimony is entitled to such weight, faith and credit as the jurors think proper to give it. That is the extent of the right and the rule. The trial judge committed no error in the case at bar in his refusal to grant the requested instruction.
Affirmed.