Opinion
No. 31210.
June 11, 1934.
1. CRIMINAL LAW.
Requested instruction to jury not to consider questions or inference of prosecuting attorney as evidence against defendant held properly refused.
2. CRIMINAL LAW.
Counsel is entitled to state and analyze testimony and draw deductions therefrom, subject to correction by opposing counsel for misstatements or unsound deductions.
APPEAL from Circuit Court of Forrest County.
Pat Koonce, of Hattiesburg, for appellant.
Testimony of the prosecuting witness is not supported or even corroborated by any other witness in the case, but the testimony of the defendant and for the defendant, and the witness for the defendant, all absolutely contradict the testimony of the lone state witness, and establish the appellant's innocence.
We cannot understand why the circuit court refused the instruction complained of.
Certainly no question that the prosecuting attorney might ask and no inference he might draw could possibly be evidence in the case, because all the evidence in the case is the evidence given by the witness, and the instruction simply instructed the jury to that effect. After all, the instruction was highly important and highly necessary for the appellant because of the prejudicial manner of questioning of the prosecuting attorney as shown by the record.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The larger and ultimate question whether the verdict is against the great weight of the evidence does not arise until the verdict has been rendered, and before this court can review that question the judgment of the trial judge must first be obtained upon it and his opinion and ruling upon it can be obtained only by a motion for a new trial, assigning that ground.
Justice v. State, 170 Miss. 96.
The instruction which was refused is too general, and does not state what "questions and inferences of the district attorney" are to be disregarded. The instruction which was given withdraws certain testimony from the consideration of the jury. The refused instruction would have had the effect of withdrawing from the jury's consideration every question asked by the district attorney during the trial of the case, and every inference made by him during the trial, as well as during the argument.
Appellant was indicted and convicted in the circuit court of Forrest county of the crime of robbery and sentenced to the penitentiary for a term of eight years. From that judgment he prosecutes this appeal.
We do not think any of the questions raised and argued in this case are of sufficient merit to require a discussion, except the refusal by the court of an instruction requested by appellant, which was in the following language: "The court instructs the jury for the defendant that you are not to consider the questions or inference of the prosecuting attorney as evidence against the defendant, but that you are bound under the law to make up your minds from the testimony of witnesses alone.
There was no error in refusing this instruction. In short, it sought to tell the jury to pay no attention to the argument of the prosecuting attorney; that they were not to consider his analysis of the evidence and inferences therefrom. If such an instruction were proper, the argument of counsel would be utterly useless. One of the most important functions of a trial lawyer is oral argument. In order to aid the jury or the chancellor in arriving at a correct judgment on the issues of fact, he is entitled to state the testimony of the witnesses as he understood it, to analyze it and draw deductions therefrom as favorable to his client as he may think justified. If he misstates the testimony, or his analysis thereof and deductions therefrom be unsound, opposing counsel is entitled, and in the interest of his client it is his duty, to expose such false statement and unsoundness of analysis and inference. After hearing the testimony of the witnesses and observing their demeanor as they testify, the argument of counsel pro and con, giving their version of the testimony and its meaning and significance, is a most valuable aid to the trier of the issues of fact in arriving at a correct finding.
The latter part of the instruction embodies a correct principle of law; by it the jury were told that they had to make up their minds from the evidence alone. But the instruction considered as a whole was faulty, for the reason stated.
Affirmed.