LOGSDON v. STATE

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Docket Number

No. 33410.

Attorney(S)

John Horan, of Water Valley, for appellant. The defense of this appellant was an alibi. Appellant showed by several persons that he was in Memphis at the time of the robbery. The victims had never seen him before the robbery, and then at night and one of the victims being rendered unconscious. They did not see Logsdon until eight months later. The case was close and the appellant might have been acquitted had not the district attorney asked appellant's wife upon cross-examination: "How many times has this defendant been convicted of crime?" Objections were timely made and the court was requested to withdraw the case from the jury and enter a mistrial, but this was refused by the court. It is true that the court sustained the objection to the evidence, but this was not enough under the circumstances. We submit that appellant did not get that fair and impartial trial the law says he should have, and that the case should be reversed and appellant granted another trial. W.D. Conn, Jr., Assistant Attorney-General, for the State. There was testimony which positively identified the appellant as having participated in the robbery and there is other testimony conflicting with the defendant's alibi evidence. This was sufficient, as a matter of law, to sustain the conviction as pointed out in Coleman v. State, 155 Miss. 482, 124 So. 652. If we should concede that it was an improper cross-examination of the wife of the appellant, nevertheless, we submit that the court's sustaining of the objection promptly and his admonition to the jury to not consider the question and to forget it entirely was sufficient to remove any vice in the mere propounding of the question. Particularly does this appear to be true since the witness did not answer one way or the other. Johnston v. State, 101 Miss. 397, 58 So. 97; Allen v. State, 175 Miss. 745, 166 So. 922; Hughes v. State, 174 So. 557; Bryant v. State, 176 So. 590. These cases are cited as being persuasive upon the proposition that the direction of the court to the jury that it not consider, but entirely forget the question to which objection was sustained, was sufficient to correct the situation and that there should be no reversal here on what the record shows took place at this particular time.

Judges

Smith, C.J., delivered the opinion of the court.

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LOGSDON v. STATE.

1. CRIMINAL LAW.

Where defendant's wife, who had testified on his behalf was asked on cross-examination how many times defendant had been convicted of crime and court sustained an objection to the question with a direction that jury should not consider the question, refusal to grant a mistrial for alleged prejudice to the rights of the defendant was not error.

2. CRIMINAL LAW.

Ordinarily, error in the asking of an improper question is cured by not permitting an answer thereto, but whether such error is incurable so that a mistrial, if requested, should be granted rests in the sound discretion of the trial court.

Smith, C.J., delivered the opinion of the court.

The appellant's only complaint is that the court erred in not granting his request to withdraw the case from the jury and enter a mistrial. The appellant's wife testified in his behalf, and on cross-examination was asked, "How many times has this defendant been convicted of crime?" This question was objected to by counsel for the appellant, who stated that it is "highly improper and prejudicial to the rights of the defendant, and we ask that the jury be discharged and a mistrial entered," to which the trial judge replied, "The objection is sustained, and you gentlemen of the jury will not consider the question, forget it." The question was not answered by the witness. The question should not have been asked, but when the court sustained the objection thereto and directed the jury not to consider it, no error was committed in refusing the appellant's request for a mistrial.

Ordinarily, error in the asking of an improper question is cured by not permitting it to be answered. Whether such an error is incurable and a mistrial therefor, if requested, should be granted rests in the sound discretion of the trial court, and we do not think this discretion was here abused. On the contrary, we concur in the ruling made.

Affirmed.

LOGSDON v. STATE.

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