Opinion
No. 36064.
June 10, 1946.
1. CRIMINAL LAW.
An arraignment is not jurisdictional and may be waived by the defendant.
2. CRIMINAL LAW.
Arraignment is waived when defendant takes part in the trial without objection as to the arraignment.
3. CRIMINAL LAW.
A defendant who was present and participated in trial to the extent of accepting jury, and excusing witnnesses for the state by the statement that no cross-examination would be made at that time, or that right to cross-examination was reserved or words to a similar effect, until state rested, when he moved for a directed verdict, waived arraignment.
4. CRIMINAL LAW.
A party objecting to procedural errors or omissions must do so specifically and promptly.
5. CRIMINAL LAW.
Where the court not only sustained objections to alleged improper conduct of special prosecuting attorney when the conduct occurred, but in each case expressly admonished jury to disregard the matter of which complaints were made, the direct admonition to the jury cured alleged improper conduct.
6. CRIMINAL LAW.
Where defendant obtained 28 instructions in which every possible phase of case was covered, complaints about instructions given for the State and refusal of others for the defendant were not well taken.
7. CRIMINAL LAW.
Instructions obtained by defendant covering every possible phase of the case were to be read together with allegedly improper instructions given for the State, in determining whether error was committed.
APPEAL from the circuit court of Lauderdale county, HON. JESSE H. GRAHAM, Judge.
Gilbert Cameron and Cecil Rogers, all of Meridian, for appellant.
The appellant was not arraigned on the murder indictment until after the State had rested its case and after appellant had made a motion for a discharge of appellant and suspension of all proceedings. The State was permited over appellant's objection to reopen the case and to then arraign appellant. Whereupon appellant moved for a mistrial, which motion was overruled by the court. The appellant thereupon objected to the court requiring appellant to proceed with the cause since there had been made no issue, and the State had failed even after arraignment to re-introduce its testimony taken prior to arraignment. The appellant had not waived arraignment in any sense and had not participated in the trial of the case by examination of jurors or by cross-examination of witnesses for the State. The appellant had merely announced ready and had accepted the jury. This was not a waiver of arraignment nor participation in trial.
Scruggs v. State, 130 Miss. 49, 93 So. 482; Bufkin v. State, 134 Miss. 1, 98 So. 452.
Until the appellant places his good reputation in issue, the State cannot legally place his bad reputation in issue.
Webb v. State, 111 Miss. 419, 71 So. 738.
The motions for mistrial because of racial argument were by the court overruled. This argument was highly prejudicial and has long since been condemned by this Court.
Walton v. State, 147 Miss. 17, 112 So. 601; Funches v. State, 125 Miss. 140, 87 So. 487; Sykes v. State, 89 Miss. 766, 42 So. 875; Harris v. State, 96 Miss. 379, 50 So. 626; Collins v. State, 100 Miss. 435, 56 So. 527; Moseley v. State, 112 Miss. 854, 73 So. 791; Garner v. State, 120 Miss. 744, 83 So. 83; Williams v. State, 122 Miss. 151, 433, 84 So. 8; Hughey v. State (Miss.), 106 So. 361.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
A failure to arraign the defendant renders the trial illegal.
Wilson v. State, 42 Miss. 639.
The arraignment may be waived and is waived where the trial proceeds without objection.
Arbuckle v. State, 80 Miss. 15, 31 So. 437; Scruggs v. State, 130 Miss. 49, 93 So. 482; Bufkin v. State, 134 Miss. 1, 98 So. 452; Thomas v. State, 117 Miss. 532, 78 So. 147, Ann. Cas. 1918E, 371.
Counsel for appellant complains that counsel for the prosecution asked a witness for the defense the following questions: "Q. He is kind of a bully in the town, ain't he? A. I don't know." The appellant objected to this question and the court sustained the objection, at which point the jury retired, and counsel for appellant, in the absence of the jury, moved for a mistrial because of the question and its highly prejudicial effect upon the jury. This motion for a mistrial was overruled by the court. The question was not of such character as should cause a reversal of the case. The court having sustained the objection to the question, it must be assumed that the jury understood that the question was improper and that they should not consider it.
Counsel has such a wide latitude in his argument that it is unsafe to condemn an argument on mere isolated sentences or remarks. The bill of exceptions should contain at least enough of the argument, with the actual language used therein, as would show the scope and purpose of the argument. It is never safe to reverse on account of an argument unless it clearly appears what the argument was in its fullness and scope, because counsel is given a wide range in discussing the facts and drawing inferences therefrom.
See Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817.
Argued orally by Charles Cameron, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant was indicted for murder. He employed capable and reputable attorneys for his defense, and they were present with him at every step taken after the return of the indictment. On the day set for the trial the attorneys for the defendant announced ready, whereupon the court proceeded to empanel a jury. When this was done and the jury was accepted by the State, and tendered to the defendant, counsel for the defendant dictated into the record the statement that "the jury as tendered to the defendant, is without any examination by the defendant, accepted." The State put on its witnesses and when each had concluded his testimony in chief, the attorneys for the defendant excused the witness and all of them successively by the statement that no cross-examination will be made at this time, or the right to cross-examine is reserved, or no questions at this time, or words to a similar effect, and when the State rested defendant at once made a motion that the court suspend the proceedings in the case and discharge the jury and direct a verdict for the defendant, for the reason that the defendant had not been arraigned or required to enter a plea to the charge.
On this motion it was shown to be true that the defendant had not been arraigned, and the State thereupon asked that the case be reopened and that the arraignment be permitted, which request the court sustained with leave to the defendant to recall the State's witnesses for cross-examination. This was done by the defendant under protest, and it may be added that, in addition, defendant made every other motion and maneuver that was necessary or proper to bring his point into review.
Appellant concedes that under the modern decisions by this Court an arraignment is not jurisdictional and may be waived by the defendant, and is waived when he takes part in the trial without objection as to the arraignment. Scruggs v. State, 130 Miss. 49, 93 So. 482; Bufkin v. State, 134 Miss. 1, 98 So. 452. But appellant says that he took no such part as would hold him to a waiver. We think it was sufficient if he was present and took any part at all, as the record shows he did.
It is a general rule which pervades the practice and procedure in this State, civil and criminal, that a party objecting to procedural errors or omissions must do so specifically and promptly. There are several reasons for the rule, two of which may now be stated as sufficient for the present case, and the first is that thereby the error or omission may be at once corrected and the cause speeded on its merits, and the second is that otherwise it would allow a party to go back and take advantage of a procedural objection which he did not specifically raise at the time the error or omission occurred with the result that the trial at the behest of an objector would be carried alternately backward and forward, whereas its progress should always be forward. There are reasonable exceptions to the general rule, but we think the present case does not present any occasion for an exception. It seems to us, moreover, that any substantial harm that may be supposed to have come to appellant by the neglect of the State had its compensation in the advantage conferred on him by the court in allowing him to recall and cross-examine each of the State's witnesses after having heard the testimony in chief of all of them.
Appellant complains of the conduct of the special attorney employed in the prosecution wherein (1) the attorney asked of one of the witnesses a question which implied that appellant was of bad reputation when his character or reputation had not been first put in issue by appellant; (2) the argument of the attorney which could be construed as injecting the racial issue, and (3) the assertion in the argument that appellant was drunk when there was no testimony whatever to sustain that assertion. The record shows that when the irregularities occurred the court not only sustained the objections made to them, but in each case the court expressly admonished the jury to disregard the matter of which the complaints were made; and this direct admonition to the jury by the court was sufficient to cure the improper conduct. Brush v. Laurendine, 168 Miss. 7, 12, 150 So. 818. It is by the exercise of this authority by the trial judge in an unmistakable manner that many judgments are properly saved on appeal which otherwise would be reversed.
We cannot agree that the verdict is against the great weight of the evidence, our view of it being that when the proof is closely examined it would well support a conviction of murder instead of the verdict of manslaughter which the jury returned.
Two or three of the complaints by appellant about the instructions given for the State, and the refusal of others for the defendant, might be well taken were it not for the fact that appellant obtained twenty-eight instructions in which every possible phase of the case was covered, and it is together with all of these that the other instructions must be read.
Affirmed.