Summary
In Russell v. State, 185 Miss. 464, 189 So. 90, it was said, in reversing the case on a similar contention: "In fact this principle is now so well established, by decisions of this Court too numerous to quote from and discuss here, that it should no longer be necessary to call attention again and again to the impropriety and prejudicial effect of comments upon the failure of the wife of the accused to testify in his behalf, or upon the inability of the State to use her as a witness."
Summary of this case from Turnage v. StateOpinion
No. 33607.
May 22, 1939.
1. HOMICIDE.
A conviction for murder would be reversed for errors which, although standing alone were insufficient to justify reversal, when considered as a whole resulted in defendant being denied a fair trial.
2. CRIMINAL LAW.
In murder prosecution defendant could predicate reversible error on exhibition of affidavit against defendant which had been signed by his wife and statement of prosecuting attorney that state could not put wife on stand, where defendant made motion for mistrial and did not waive objections to exhibition of affidavit or comment of prosecuting attorney.
3. CRIMINAL LAW.
Comment on failure of wife of accused to testify in his behalf or on the inability of the state to use her as a witness is improper and prejudicial.
4. CRIMINAL LAW.
In prosecution of husband for murder of his cousin, comment of district attorney that state could not put wife on stand during examination of husband as to whether wife had made affidavit against husband for assault and battery was prejudicially erroneous.
5. HOMICIDE.
In prosecution of husband for murder of cousin who had accompanied defendant's wife to make affidavit against husband for assault, neither testimony concerning whipping administered by husband to wife nor affidavit made by wife should have been admitted.
6. CRIMINAL LAW.
In prosecution of husband for murder of cousin who had accompanied wife to make affidavit against husband for assault, husband should have been permitted to disclose cause of whipping wife after district attorney succeeded in having husband admit act of whipping notwithstanding that neither whipping nor affidavit should have been admitted.
7. CRIMINAL LAW.
In prosecution for murder wherein defendant admitted that his asserted insanity shortly after killing was feigned and asserted that it had been advised by attorney, testimony of attorney that he had not given such advice was inadmissible as immaterial.
8. HOMICIDE.
In murder prosecution, the issue of punishment to be inflicted should be decided by jury uninfluenced by extraneous and highly prejudicial issues.
9. CRIMINAL LAW.
In murder prosecution, motion to bar special prosecutor from further participation in case on ground that he had been retained by defendant was properly denied if attorney had not discussed facts of case with defendant and employment was never consummated.
10. WITNESSES.
The question of whether or not a fee is raised is not the test as to the competency of an attorney to testify where he has been consulted in a professional capacity and has given advice of any nature or character relating to the case.
11. CRIMINAL LAW.
In murder prosecution controversy as to whether special prosecutor has been retained by defendant and has given him advice so as to be disqualified from participating in trial and incompetent to testify should not have been heard in presence of jury.
12. CRIMINAL LAW.
In murder prosecution action of state in holding in reserve two material witnesses in chief until after defendant had rested its case and in permitting their testimony to be given in rebuttal, although not reversible error, was improper.
SMITH, C.J., and McGOWEN, J., dissenting.
APPEAL from the circuit court of Calhoun county; HON. T.H. McELROY, Judge.
E.L. Lamar, of Calhoun City, and W.I. Stone, of Coffeeville, for appellant.
Oscar Lawrence, a member of the bar of Calhoun county, was allowed by the court, over the protest of the appellant, to take part as a prosecuting attorney, assisting the District Attorney in the prosecution of this case after Oscar Lawrence had been repeatedly conferring with the defendant and his parents and their friends in the jail and outside of the jail, had repeatedly advised him as to his defense, had taken a bill of sale of every article of property that the appellant possessed, and had taken or was manipulating for the taking of a deed of trust to be signed by the relatives of the appellants for what property they had, for a fee for the defense of the appellant, and which bill of sale above mentioned is shown by the testimony to have been at the time of the trial in the hands of Oscar Lawrence; also allowed this man Lawrence to take the witness stand before the jury and before the court and testify that he had consulted with the circuit judge on the bench as to the propriety of his action. It is also shown by the admission of the said Lawrence on the stand on cross-examination that during the term of the circuit court, September, 1938, during the second week of the said court, during the trial of this law suit, that the said Lawrence had gone to the circuit clerk of Calhoun county and exhibited his bill of sale and demanded the possession of a shotgun of appellant by virtue of the terms of his bill of sale, at which time of such demand he admitted that he had already joined the forces of the state and was actively engaged in the prosecution of this appellant.
We respectfully represent to the court that we think a simple statement as above of this assignment of error calls for an immediate and positive reversal of this conviction.
We would like very much to submit pages 204 and 205 of this record which shows a gross violation of the rule laid down by our law and by our decisions that a man can put his wife on the stand himself on the stand if he pleases and his failure to do so cannot be commented on by counsel. Here the District Attorney, right at the threshold of taking of testimony in this case, got up in court and announced, without any introductory remarks or any provocation whatever, that the wife of the defendant was in court and then on 204 and 205 he grossly invaded the rights of defendant by cross-examining him as to whether or not his wife had not made an affidavit against him for a crime against her, taunted him with the question as to whether or not he knew it was impossible for the state to put the wife on the stand, and all together as plain and deliberate a violation of the rights of a man on trial as could be imagined.
In practically two score years at the bar the writer has defended scores of appellants where he felt called upon to insist that every defendant no matter how poor and improverished a wretch it was had the right to a fair trial. It is here said deliberately, and weighing our words, that we do not believe we have ever known a case that was a clearer and more deliberate and premeditated violation of the right of a defendant than that shown in the present record. The methods of the state were ruthless and you would hardly fail to wind up with a sentence to the extreme penalty. We think this was caused not by deliberate malice on the part of the authorities but by allowing the attorney to take possession of the prosecuting authorities that this man should be railroaded to the gallows. We protest this method and earnestly seek for him a new trial had according to the forms of law. We do not believe the trial at the September Term, 1938, fulfills this requirement.
Russell Wright, Assistant Attorney-General, for the State.
Mr. Lawrence was placed upon the witness stand, and testified that the employment was never actually made, that the defendant had told him nothing of the facts of the case, and that he had gone into the whole matter with the court and the district attorney before the trial commenced, and had been advised that there was no impropriety in appearing as special prosecutor.
A careful examination of this record discloses no errors for which this court should disturb the judgment of the lower court, and I respectfully submit that the judgment of the lower court should be affirmed.
Argued orally by E.L. Lamar and W.I. Stone, for appellant, and by Russell Wright, for the State.
The appellant, Booker T. Russell, was indicted and tried for the murder of his cousin, Ivan Lee Russell, and upon a verdict of guilty as charged being returned, he was sentenced to death.
We deem it unnecessary to state in detail the facts in connection with the homicide in passing upon this appeal, for the reason that the cause is to be reversed and remanded for a new trial.
Even though it be conceded that under the facts and circumstances transpiring at the scene of the killing, the jury may not have been warranted in doing otherwise than to find the appellant guilty of murder, nevertheless, there were a number of errors committed during the trial which in our opinion may have been reasonably calculated to unduly influence the jury in its decision as to the extent of the punishment to be imposed. It is true that no one of these errors, when considered separately and apart from the others, is sufficient to justify a reversal of the case, but when they are considered as a whole it is our view that they resulted in the appellant being denied a fair trial under the principles of law previously announced by this Court.
The record discloses that during the afternoon on Wednesday, before the killing occurred on Thursday, the deceased, together with his wife, sister, daughter and others went to the home of the appellant in an automobile while he was in the field and carried his wife to town where she made an affidavit against him for assault and battery and also sought to have him placed under a peace bond in regard to some trouble which the appellant and his wife had on the Sunday before. When appellant's mother informed him that his wife had been carried off by these parties, he went to town to see the sheriff, and was thereupon placed in jail in the preferred charges. On the next morning these parties all arrived at court too late, and the appellant had in the meantime been discharged. Within an hour after they had all left the courthouse, the killing occurred, according to the State's evidence, under such circumstances as to show an assassination, while the appellant interposed a plea of self-defense. Upon the trial, the district attorney, after having asked the appellant, if he had not whipped his wife on the day before (instead of on the Sunday before), handed him an affidavit purporting to have been made before C.S. Crutchfield, a justice of the peace, and asked, "Who made that affidavit?" to which the appellant objected for the stated reason that it was an attempt to impute to the defendant a crime for which he was not on trial. The objection was overruled, and the district attorney was then permitted to ask in the presence of the jury "Who swore it out against you?" Objection was again made on the ground that the inquiry was prejudicial. This objection was likewise overruled and the appellant then answered "I don't know who swore it out." The district attorney then asked: "Whose name is that on there? Answer: Lydie Russell.
"Q. What is your wife's name? A. Lydie Russell, but I don't know whether she put in on there or not.
"Q. Is she here? A. Yes.
"Q. You have her summoned? A. Yes sir, she can tell you more about it than I can.
"Q. You know the state cannot put her on the stand."
Thereupon, objection was made, which was sustained by the court, and the jury was thereupon instructed to disregard this comment of the district attorney. A motion was then made for a mistrial and was overruled.
In the case of Holmes v. State, 151 Miss. 702, 118 So. 431, 433, the Court said:
"It appears that the trial court sustained the objection to the argument as made, and the defendant did not make any motion for a mistrial to be entered because thereof, but took his chances by proceeding with the trial without making a motion for the entry of a mistrial."
"We have some several times held that a defendant cannot so deal with the situation; that where the court sustains his objection, if he still thinks there is reversible error in the remarks, he should move to enter a mistrial, and have the cause retried before another jury."
It will be noted however that the appellant promptly making a motion for a mistrial in the case at bar, did not in any manner waive his objections to this affidavit being exhibited or to the comment of the district attorney which amounted to more than a mere comment on the failure of his wife to testify, since it went further and informed the jury that the State could not use her as a witness, leaving the inference to be drawn that the State would put her on the stand if it could. It must be conceded that a similar situation was presented in the case of Carter v. State, 99 Miss. 435, 54 So. 734, and that it was held not to be reversible error, the Court observing that the questions were highly improper, and that they should not have been asked. In fact this principle is now so well established, by decisions of this Court too numerous to quote from and discuss here, that it should no longer be necessary to call attention again and again to the impropriety and prejudicial effect of comments upon the failure of the wife of the accused to testify in his behalf, or upon the inability of the State to use her as a witness.
It also appears that after the appellant had been required to admit that he had struck his wife two or three times with a switch on Sunday before the killing, he was not permitted to state in the presence of the jury the provocation, which, whether justified or not, prompted him to do so. He had stated as a witness, out of the presence of the jury, that the trouble between him and his wife on that Sunday pertained to an alleged illicit relation between his wife and the deceased. The threats made by the deceased and alleged to have been communicated to the appellant, referred to by witnesses for the defense, likewise pertained to this alleged relation. Thus, it will be seen that the fact that the district attorney exhibited the affidavit to the appellant in the presence of the jury and questioned him about the same, with the comment of the district attorney that the State could not put his wife on the stand, was highly prejudicial in view of the fact that the admission obtained by him from the appellant that he had whipped his wife was permitted to go to the jury wholly unexplained. Neither the testimony about the whipping nor the affidavit should have been admitted; but when the district attorney succeeded in having the appellant admit the fact of the whipping, the appellant should have then been allowed to disclose the cause and the facts on which he acted in the matter. The State's version alone of this prejudicial incident should not have been permitted to go to the jury over the objection of the appellant.
It also appears that the special prosecutor who was employed to assist the district attorney after the term of the court had been convened, had previously visited the jail, at the instance of the appellant, shortly after the killing occurred, and that there were negotiations had with the view of employing the said attorney for the defense. The father of the appellant was present on one of the occasions. The attorney took a bill of sale covering everything that the appellant had, including the shotgun with which the deceased was killed. He thereupon advised the appellant to the extent that he should keep his mouth shut and not talk to anyone about the facts of the case. Thereafter, this attorney conferred with some of the other relatives of the appellant with reference to additional security, which was not furnished. It was therefore contended by the attorney that his employment for the defense was never definitely closed, and that the facts of the case were not discussed on either of his visits to the jail. He informed the circuit clerk on Monday before the trial began that he had a bill of sale and an order for the appellant's shotgun, and although he still had the bill of sale in his possession at the trial, he stated that he was making no claim to anything therein conveyed, and that he had advised the defendant's attorney prior to the preliminary trial that he, the special prosecutor, was not employed for the defense.
After the State had closed its case, and while the appellant, as a witness in his own behalf, was being cross-examined, he replied to the questions of the district attorney, as follows:
"Q. When you were put in jail over here you played crazy? A. Yes, sir.
"Q. You admit you did? A. Yes, sir.
"Q. And you told the sheriff the reason you were playing crazy your friends advised you to do it and that was the only chance you had to get out of it? A. Someone sent me word that Os Lawrence (attorney for the prosecution) said for me to play crazy and go to the insane hospital a few months and I would get out.
"Q. So you did play crazy? A. Yes, sir.
"Q. And you did that to get out of this killing? A. I did what he said.
"Q. Answer the question yes or no. You played crazy in order to get out of that shooting? A. I did what the lawyer said."
When this controversy arose between the appellant and the said attorney as to whether the relation of attorney and client had ever existed between them, the court of its own motion said: "Take the jury out," and to which the district attorney replied: "We want the jury to hear it. We want the privilege of putting the attorney on the stand." The record then discloses that the jury was thereupon retired, and that under the conflict of the testimony of the attorney and the defendant with reference to the alleged employment, the court held that the relation of attorney and client did not exist, and overruled a motion made by the defendant to bar the special prosecutor from a further participation in the case. Thereafter, the attorney was placed on the stand in rebuttal as a witness to contradict the testimony of the appellant hereinbefore quoted, and the controversy between the attorney and the defendant was then "aired" at length in the presence of the jury. No objection was interposed by the defense to this procedure, but in our opinion the same reason existed for the retirement of the jury by the court of its own motion when the State placed the attorney on the stand in rebuttal, as existed when the controversy first arose. The appellant had already frankly admitted that that his asserted insanity shortly after the killing was feigned; and it was therefore immaterial who advised it, or whether it had been suggested by anyone at all. Since the jury was vested with the power to determine whether or not the death penalty should be inflicted in the case, this issue of life or death should have been decided by the jury, uninfluenced by extraneous and highly prejudicial issues.
If it were true, as testified by the attorney, that he had never discussed the facts of the case with the appellant and the employment was never consummated, then the trial court was not in error in holding that the relation of attorney and client had never existed; but it should be clearly understood that the question of whether a fee is raised is not the test as to the competency of an attorney to testify where he has been consulted in a professional capacity and has given advice of any nature or character whatever relating to the case. Otherwise, it could be said by analogy that if a patient consults a physician or surgeon in his professional capacity, and then finds himself unable to pay the medical or surgical fee required, the privilege of the communication would be removed. At any rate, no part of this controversy should have been heard in the presence of the jury.
Again, two of the most material witnesses, Ellard and Trenor, were introduced as the last ones offered in rebuttal by the State, and gave testimony which was of the most damaging character, over appellant's strenuous objections, and all of which was properly a part of the State's case in chief. The overruling of objections made on behalf of the appellant to the evidence upon the trial is here assigned as error. While this error above is not sufficient to reverse, under the authority of the case of Roney v. State, 167 Miss. 827, 150 So. 774, it was nevertheless unfair to the accused for these two witnesses in chief to have been held in reserve until after he had rested his case.
Neither did right or justice demand, nor expediency require, the taking of any undue advantage of the accused. If he is to be hanged, it should not be done until a jury shall have so determined on a trial purged of the errors and extraneous matters here disclosed.
Reversed and remanded.
McGowen, J., and Smith, C.J., dissent.