SHAW v. STATE

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Docket Number

No. 34031.

Attorney(S)

J.W. Conger, of Winona, for appellant. The record shows that the district attorney used the language: "The instructions are sugar coated; these instructions were prepared to mislead the jury; these instructions are telling you one thing when the law is another; it is always evidence of a defendant's weak case when he procures from the court a lot of instructions." The defendant timely objected to the statements of the district attorney, and the court sustained the defendant's objection, but the defendant went further and asked for a mistrial, as requested by the Aldridge case, 177 So. 765. There is no doubt about the statements being prejudicial to the defendant. The argument was not provoked by anything that happened on the trial; it was purely voluntary, with the effect of prejudicing the jury. The argument was not legitimate. Guest v. State, 130 So. 908, 158 Miss. 588. It is rather preposterous to think that a prosecutor has the right to tell the jury, in open court, in his argument that the instructions were prepared to mislead and that they are sugar coated, and that the instructions say one thing and the law is another thing, and that the number of instructions asked for and signed by the judge on behalf of the defendant is evidence of his weak case. It was the duty of the judge to interrupt the district attorney, rebuke him, allow the defendant the alternative of proceeding or a mistrial. It will be openly agreed that the remarks were prejudicial, we are sure, and we believe a mistrial should have been granted, and since it was not granted, the only tribunal now that can correct the matter is this court, and we, therefore, pray that the cause be reversed and remanded. W.D. Conn, Jr., Assistant Attorney-General for appellee. The alleged improper argument appears at page 73 of the record and is shown by way of a motion dictated into the record by appellant's counsel, Mr. Conger. So far as a review of the ruling of the court in this respect is concerned, we think that it cannot be reviewed. This court has said in a number of cases that unless the argument is taken down by the stenographer and incorporated in the general bill of exceptions any objectionable argument can only be shown by a special bill of exceptions made up in some one of the ways authorized by law. Keeton v. State, 102 Miss. 747, 59 So. 884; Huggins v. State, 103 Miss. 227, 60 So. 209; Brumfield v. State, 102 Miss. 610, 59 So. 849. This court has also said that the averments of a motion do not amount to any proof at all. Reed v. State, 143 Miss. 686, 109 So. 715; Young v. State, 150 Miss. 787, 117 So. 119. Assuming, however, that the court may properly review this matter, and assuming that the district attorney said what appellant's counsel said he did, we do not believe that what happened would warrant a reversal of this conviction. Assuming that all of the recitals of the motion are true, it appears that the district attorney made an argument calculated to disparage the instructions given to the jury at the request of the defendant. The court has said that this character of argument is improper. Winchester v. State, 163 Miss. 462, 142 So. 454; Yarbrough v. State, 165 Miss. 847, 147 So. 780; Floyd v. State, 166 Miss. 15, 148 So. 226. In none of these cases, however, did the court say that it was reversible error to indulge in this sort of argument, although two of the cases were expressly reversed upon other grounds. We think that the sustaining of the objection and the statement of the trial judge that the defendant's instructions were a part of the law given to the jury by the court, were sufficient under all the circumstances so as not to require any reversal of the conviction which later resulted. Aldridge v. State (Miss.), 177 So. 765.

Judges

McGehee, J., delivered the opinion of the court.

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SHAW v. STATE.

1. CRIMINAL LAW.

Where alleged improper argument by district attorney was shown by motion dictated into the record by defendant's counsel, rather than by incorporation in general bill of exceptions or by special bill of exceptions, propriety of such argument was not reviewable.

2. CRIMINAL LAW.

Trial courts should never permit counsel to make an argument calculated to dispute the correctness of instructions given on the law by which jury is to be guided.

3. MOTIONS.

Since a motion is at issue without further pleading, averments thereof do not amount to any proof of the facts stated therein.

4. CRIMINAL LAW.

Argument allegedly made by district attorney, that instructions given for defendant were "sugar-coated; were prepared to mislead the jury; they are telling you one thing when the law is another; and it is always evidence of a defendant's weak case when he procures . . . a lot of instructions," was highly improper, but was cured by court's statement that the instructions correctly stated the law.

McGehee, J., delivered the opinion of the court.

The appellant was convicted in the Circuit Court of Montgomery County on an indictment charging him with assault and battery with intent to kill and murder, and sentenced to serve a term of five years in the state penitentiary. No complaint is made that the proof fails to sustain the verdict and judgment appealed from, but a reversal is sought on the ground of improper argument made to the jury by the district attorney.

The alleged improper argument is shown by means of a motion dictated into the record by appellant's counsel, instead of the remark being taken down by the Court Reporter and incorporated in a general bill of exceptions, or shown by a special bill of exceptions taken in some of the ways authorized by law. The argument complained of is not therefore before us for review. Powers v. State, 83 Miss. 691, 36 So. 6; Keeton v. State, 102 Miss. 747, 59 So. 884; Huggins v. State, 103 Miss. 227, 60 So. 209; and Brumfield v. State, 102 Miss. 610, 59 So. 849, 921. We set forth the remarks alleged to have been made only in order that we may make the observation again that trial courts should never permit counsel in any case to make an argument calculated to dispute the correctness of the instructions given as to the law by which a jury is to be guided in its deliberations.

The motion above referred to alleges that the district attorney stated in closing his argument that: "These instructions are sugar coated; they were prepared to mislead the jury; they are telling you one thing when the law is another; and it is always evidence of a defendant's weak case when he procures from the court a lot of instructions." These alleged remarks were objected to, the objection sustained, and the jury was told by the court that the instructions given for the defendant were the law as given by the court. We do not have the benefit of the trial judge's version of what language was actually employed by the district attorney on the occasion in question, nor the said officer's own version of the incident. A special bill of exceptions, duly approved and signed by the judge, where the language complained of was not taken down by the reporter and made the basis of a general exception, would serve to reflect his assent to the correctness of the statements set forth therein as grounds for exception, after giving due consideration to the respective contentions in regard thereto.

Since a motion is at issue without further pleading, the averments thereof do not amount to any proof of the facts stated therein, Reed v. State, 143 Miss. 686, 109 So. 715; Young v. State, 150 Miss. 787, 117 So. 119. Therefore, we cannot predicate reversible error on the complaint here made as to the alleged argument, even though we should deem it prejudicial error if embodied in a bill of exceptions, so as to be reviewable. Therefore we think it sufficient to say that the remarks attributed by the motion to the prosecuting officer, if made as stated therein, were highly improper and should not be indulged in under any circumstances. However, in view of the fact that this record discloses that the trial judge promptly took issue with whatever argument was then being made in regard to the instructions, by telling the jury that they correctly stated the law, it was equivalent to an instruction for the jury to disregard the argument; and hence no error was committed in overruling the motion for a mistrial.

Affirmed.

SHAW v. STATE.

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