Opinion
No. 32815.
June 7, 1937.
1. INTOXICATING LIQUORS.
Question of defendant's guilt of unlawful sale of intoxicating liquor was for jury.
2. CRIMINAL LAW.
Overruling of motion for mistrial because of county attorney's statement in opening argument that defendant was a known bootlegger was not error where, on objection, court stated that there was no evidence to sustain that argument, since language of court was positive and sufficient to raise presumption that jury understood that court disapproved of argument, and that jury would not let such argument operate in opposition to ruling of court.
APPEAL from the circuit court of Scott county. HON. D.M. ANDERSON, Judge.
Frank F. Mize, of Forest, for appellant.
With the presumption of innocence and the evidence introduced by the appellant, we think it so overwhelmingly shows the innocence of the defendant that the peremptory instruction requested by the appellant should have been granted by the lower court.
The county prosecuting attorney, in his argument to the jury, used this language: "Why did this defendant stop there and why did those boys, Lee and Boyd, stop there? Because they knew the defendant and he was a known bootlegger."
The appellant objected to these remarks and asked for a mistrial but did not ask the court to instruct the jury to disregard that argument. The court sustained the objection and said: "There is no evidence in the records to sustain the argument."
We charge that this argument was highly prejudicial to the appellant. It is true that the court remarked that there is no evidence in the record to sustain that argument, but the telling effect had already lodged with the jury.
Collins v. State, 56 So. 527, 100 Miss. 435; Seal v. State, 153 So. 385.
For a prosecuting attorney to state as a fact to the jury that the defendant is a known bootlegger is as harmful as appealing to racial prejudice and to popular clamor.
Bryan v. State, 33 So. 225; Minor v. State, 57 So. 548; Magnes v. State, 60 So. 8; Moseley v. State, 73 So. 791; Garner v. State, 83 So. 83; Smith v. State, 105 So. 758; Gibbs v. State, 149 So. 796; Seal v. State, 153 So. 385.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Under the facts of this case, the peremptory instruction should not have been granted.
Justice v. State, 170 Miss. 96, 154 So. 265.
It takes a clear showing of the abuse of the privilege of argument for the court to reverse a case.
Schillings v. State, 151 Miss. 361, 118 So. 137; Colburn v. State, 175 Miss. 704, 166 So. 922; Matthews v. State, 148 Miss. 696, 114 So. 816.
In the case at bar, when the appellant objected to the argument, the court sustained the objection, remarking that there was nothing in the record to support such a statement. It is submitted that this statement of the trial judge in ruling on this objection was sufficient to remove the vicious influence, if any, from the argument and that the conviction in this case should not be set aside in view of the trial judge's ruling and statement.
The appellant was convicted of the unlawful sale of intoxicating liquor. So far as the facts are concerned, the case is simply one of conflicting evidence which it was the province of the jury to decide.
It was shown that about two years ago the defendant was convicted on a plea of guilty of the unlawful possession of intoxicating liquor. In the opening argument the county attorney used the following language: "Why did this defendant stop there and why did these boys Lee and Boyd, stop there? Because they knew the defendant and he was a known bootlegger." To this language the defendant's attorney objected and the court sustained the objection, and the court said: "There is no evidence in the record to sustain that argument." The court did not, however, other than by the language last quoted, direct the jury to disregard the argument, nor did defendant's attorney request such express and direct instruction to the jury, but moved for a mistrial, which was overruled.
The rules of practice in respect to improper argument are discussed at some length in Brush v. Laurendine, 168 Miss. 7, 150 So. 818. We cannot say with confidence that, by the ruling and remark of the trial judge in this case, the jury was not thereby sufficiently admonished that they were to disregard the quoted argument. The language used by the court was positive and was sufficient to raise the presumption that the jury understood that the trial court disapproved of the argument, and that the jury would not let such argument operate in opposition to the ruling of the court. Dabbs v. Richardson, 137 Miss. 789, 807, 102 So. 769.
Affirmed.