Opinion
No. 35306.
October 25, 1943. ON SUGGESTION OF ERROR.
1. CRIMINAL LAW.
In prosecution for aiding escape of felons, prosecuting attorney's argument in referring to prosecuting witness and accused respectively, that "Mrs. Shotts was here at the last term of the court," but accused "was not here because she had jumped her bond" was prejudicial where there was no testimony to that effect in record.
2. CRIMINAL LAW.
Where accused's counsel objected to prosecuting attorney's argument as not based on evidence, and attorney who was presiding at time of argument stated that he had not heard the evidence, but admonished prosecuting attorney to "stay within the record," the admonition lacked curative force upon jury, and was not a ruling on objection, and hence point was reviewable notwithstanding there was no motion for mistrial.
3. CRIMINAL LAW.
Where judge overrules objection to improper argument or fails or refuses to rule, and that is shown by bill of exceptions, point is presented for review, notwithstanding absence of motion for mistrial.
ANDERSON, J., dissenting.
Appeal from circuit court of Perry county, HON. F. BURKITT COLLINS, Judge.
Earle L. Wingo, of Hattiesburg, for appellant, on suggestion of error.
The only error committed by the court against the appellant was that she should have had a new trial by reason of improper and highly prejudicial statement made to the jury by the district attorney in the closing argument. If this had been a case where the regular presiding judge were present during the argument and counsel objected to improper argument by the district attorney and the court sustained the objection of counsel, it then would have been proper, under the law, for counsel to move for a mistrial, but such were not the facts in this case.
A careful analysis of the record and the briefs of the parties will reveal that before the argument had begun, the regular trial judge, Honorable Burkitt Collins, left the bench by agreement of counsel for the parties, and Honorable E.C. Fishel was the presiding judge during the argument. Judge Fishel had not heard any of the testimony and could not properly pass on the objection raised by counsel for the appellant, relative to the improper and prejudicial argument of the district attorney. Therefore, when the district attorney made his improper and prejudicial statement, indicating that the appellant had fled from a trial because of having "jumped her bond," the attorney presiding during the argument admonished the district attorney to stay within the record and suggested that counsel for the appellant take an exception to the argument of the district attorney in order that the regular trial judge might pass upon the question presented by the objection. This, of course, was done as will be shown by the record.
It is respectfully submitted that since the objection was not passed on by the lawyer acting as trial judge during the argument, it was not required of counsel to move for a mistrial such as would have been true if the regular judge had been presiding during the argument and had either sustained or overruled the appellant's objection to the improper and prejudicial argument of the district attorney. Counsel is familiar with the rule that objection to alleged improper argument must be followed by a motion for a mistrial regardless of the ruling of the court on the objection, but in the instant case we do not have a situation where the objection was ruled upon at all, because the attorney then presiding, being unfamiliar with the testimony and being unable to pass upon the propriety of such argument, invited counsel for the appellant to take a special bill of exceptions, which was done.
We earnestly submit because of the particular facts involved in this case, the same being a trial where the regular judge did not preside during the argument of counsel, that the general rule as rendered by the court in its decision in this case should not be applicable.
There was absolutely no testimony in the record, as will be shown by the record, that the appellant, Mrs. Hathaway, was not present at the previous term of the court, or that she had "jumped her bond."
Our court has held in a number of cases that while it is true that counsel have wide latitude in presenting their argument to the jury, yet it does not extend to statements of facts not shown in the evidence, and prejudicial to the defendant.
Roney v. State, 153 Miss. 290, 120 So. 445; Matthews v. State, 148 Miss. 696, 114 So. 816; Bufkin v. State, 134 Miss. 116, 98 So. 455; Schillings v. State, 151 Miss. 361, 118 So. 137.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney General, for appellee, on suggestion of error.
Counsel for appellant contends that due to the fact that the acting judge had not heard the evidence he could not intelligently rule upon the objection and that he did all that he could under the circumstances when he admonished counsel to stay within the record; that under these circumstances and under the rule of our court, it was not necessary to make a motion for a mistrial in order that the improper remarks of the district attorney could be reviewed in this court.
The rule in this state, as regards to improper argument, is that it is the duty of the opposing counsel when improper or prejudicial argument is made to object and take a special bill of exceptions, setting out the language used and the rulings of the court thereto. If the court overrules the objection or fails to rule, the matter is fully preserved for a review in this court. If the court sustains the objection to the argument and instructs the jury to disregard the argument, counsel objecting, in order to present the matter for review in this court, must go further and make a motion for a mistrial.
Cotton v. State, 135 Miss. 792, 100 So. 383; Aldridge v. State, 180 Miss. 452, 177 So. 765; Guest v. State, 158 Miss. 588, 130 So. 908; Floyd v. State, 166 Miss. 15, 148 So. 226; Bustin v. State, 184 Miss. 1, 185 So. 259; Pruitt v. State, 163 Miss. 47, 139 So. 861; Redwine v. State, 149 Miss. 741, 115 So. 889; Wells v. State, 162 Miss. 617, 139 So. 859; Hughes v. State, 179 Miss. 61, 174 So. 557; Shaw v. State, 188 Miss. 549, 195 So. 581; Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Jacobs v. State, 103 Miss. 622, 60 So. 723.
In this special bill of exceptions there is set forth the language used by appellant's counsel which we think invited and provoked the language used by counsel for the state in reply; and one who invites error by his own conduct cannot complain of it.
Archer v. State, 140 Miss. 597, 105 So. 747; Ransom v. State, 149 Miss. 262, 115 So. 208; Sullivan v. State, 155 Miss. 629, 125 So. 115; Mitchell v. State, 176 Miss. 873, 170 So. 534.
This case was affirmed by Division B of this court at a former date, and upon the filing of a suggestion of error the judgment was set aside and the case was referred to the court in banc. Appellant was indicted, tried, and convicted of aiding the escape of certain parties guilty of robbery with a deadly weapon. The errors assigned dealt chiefly with the argument of the prosecuting attorney, who, in referring to the prosecuting witness and the defendant, respectively, said, "Mrs. Shotts was here at the last term of the court, but Mrs. Hathaway was not here because she had jumped her bond." There was no testimony to this effect in the record and the court is unanimous in its opinion that such reference was prejudicial, especially in view of the issues and testimony presented by the record.
Counsel for the appellant promptly objected to the argument. The trial judge was not sitting at the time of the argument, but a member of the bar was presiding. Such presiding member, as disclosed by the bill of exceptions, thereupon stated that he had not heard the evidence. However, he admonished the prosecuting attorney to "stay within the record." There was no motion for mistrial.
When the cause was first presented, it was our view that the error was not properly presented for review because there was no motion for mistrial. Stress was laid upon the circumstance that the admonition of the presiding "judge" was tantamount to the sustaining of counsel's objection, thereby requiring a motion for mistrial and the overruling thereof to present reviewable error. Cases apparently supporting this view are Pruitt v. State, 163 Miss. 47, 139 So. 861, and Shaw v. State, 188 Miss. 549, 195 So. 581.
The case here presented must be controlled by other considerations. There was no admonition to the jury nor rebuke to the prosecuting attorney. The presiding "judge," by his explanation that he had not heard the evidence, disavowed both the willingness and the capacity to rule upon the objection. Under the circumstances his mere admonition to "stay within the record" was no more than a safe generality without special point. It was lacking in corrective or curative force upon the minds of the jury, if, indeed, the prejudicial stain of such comment could be so erased. His action was neither a sustaining of the objection nor a ruling thereon. Newman Lumber Co. v. Norris, 130 Miss. 751, 760, 94 So. 881.
The rule is now well settled that where, in the event of an improper argument, the judge overrules an objection thereto or refuses to rule and this is shown by the bill of exceptions, the point is fully presented for review, and counsel is not thereafter required "to belabor the judge for a ruling when the judge refuses or fails to rule." Brush v. Laurendine, 168 Miss. 7, 12, 150 So. 818, 819.
The error was therefore properly presented for review, and having been found prejudicial we are compelled to withdraw the opinion originally filed herein and remand the cause for a new trial.
Suggestion of error sustained, and cause reversed and remanded.
The direction by the judge to counsel to stay within the record could have meant nothing less than that he had gone beyond the record. In Wells v. State, 162 Miss. 617, at page 625, 139 So. 859, at page 861, quoting from opinion, "When an objection was interposed to this statement of the district attorney, the court said, `I do not think that is proper argument,' but did not warn the jury to disregard this statement and argument, and the appellant's counsel made no request that the court do so or take any further action in the matter." The court held that the alleged improper argument could not be taken advantage of on appeal. In Cotton v. State, 135 Miss. 792, 100 So. 383, objection was made by defendant's attorney to language used by the district attorney in his argument. The court instructed the jury to disregard the same. On appeal, this court held the defendant could not take advantage of the occurrence unless at the time he made a motion for a new trial. To the same effect is Allen v. State, 148 Miss. 229, 114 So. 352, and Redwine v. State, 149 Miss. 741, 115 So. 889. Brush v. Laurendine, 168 Miss. 7, 150 So. 818, does not expressly overrule those cases, and, in my opinion, they are not in substantial conflict.