Opinion
No. 35561.
May 8, 1944.
1. CRIMINAL LAW.
Supreme Court must exert its authority to the end that trial shall be fair, but recognition must be given to the fact that technical perfection in conduct of litigation is a hopeless expectation and must not be required.
2. CRIMINAL LAW.
A case should not be remanded for retrial because of error where the error has not been a real factor in the trial.
3. CRIMINAL LAW.
Where objection was made to argument of district attorney that defendant was a "deaf and dumb brute and when he makes up his mind to satisfy his lust he will not care whom he satisfies it on" and court ordered district attorney to stay within record and told jury to disregard anything outside record, the improper argument was not prejudicial and did not require new trial in view of fact that under record jury could not honestly have done less than to return verdict of manslaughter, which they did.
APPEAL from the circuit court of Yalobusha county, HON. JOHN M. KUYKENDALL, Judge.
Stone Stone, of Coffeeville, for appellant.
The district attorney grossly violated his duty when he made the argument shown by the special bill of exceptions in his closing argument to the jury.
It is urged that the bill of exceptions taken to the argument complained of is insufficient in that the defendant did not state the basis of the objection to the argument, nor ask the court to instruct the jury to disregard it. However, where the reason for the objection is obvious, it is not required that the trial court should be informed of the ground of such objection by an express statement of the same; and where the objection has been overruled, it is not required that the objector should ask the court to exclude from the consideration of the jury that which the court has already held to be competent. Of course, if the objection had been sustained, the objector should move the court to instruct the jury to disregard the matter objected to before he would be in a position to complain that his rights have been prejudiced from the mere fact that such matter had been brought to the attention of the jury.
Gulf, M. N.R. Co. v. Weldy, 195 Miss. 345, 14 So.2d 340.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
Taken in its most favorable light, the killing could be said to have been committed in the heat of passion engendered during the process of the fight, but the person assaulted had no right to pursue and kill one who had assaulted him, and there is no circumstance tending to show that the deceased was fleeing for the mere purpose of getting a more advantageous position and the contention that the evidence is insufficient to sustain the conviction is wholly without merit.
The second and principal argument made by the appellant is that the court did not sustain the objection of the appellant to the statement of the district attorney. I submit that the court did sustain the objection and instructed the jury to disregard the statement by the language which the court used. Both the court and district attorney and also the jury manifestly understood that the court had sustained the objection and reproved the district attorney. All that the court was required to do under the circumstances disclosed was to tell the district attorney to stay in the record and to tell the jury not to consider anything that was not in the record. This is the method of reproof that is not as harsh as the appellant wished and perhaps not as clear as the appellant desired, but if he was not satisfied with the court's ruling, he should have specifically requested the court to specifically instruct the jury not to consider the statement made by the district attorney and to have told the district attorney that it was improper to make such statement. The court is not required to curse the district attorney out and the jury being composed of men of good intelligence, sound judgment and good character was supposed to know and certainly did know that the court had disapproved of the statement and the jury was not to consider the statement of the district attorney in arriving at their verdict. Statements of the character mentioned would be regarded by the jury as being unfair anyway and if the jury were men of good intelligence and sound judgment and fair character, they would not let unfair statements influence their verdict, and if they gave it any consideration in arriving at the verdict it would likely be unfavorable to the state.
Where the court sustains an objection to argument of counsel, the objector must move for a mistrial or he waives the right to maintain the point.
Allen v. State, 148 Miss. 229, 114 So. 352; Smith v. State, 144 Miss. 437, 110 So. 119; Holmes v. State, 151 Miss. 702, 118 So. 431; Walton v. State, 147 Miss. 17, 112 So. 601; Wells v. State, 162 Miss. 617, 139 So. 859; Matthews v. State, 148 Miss. 696, 114 So. 816; Aldridge v. State, 180 Miss. 452, 177 So. 765; Floyd v. State, 166 Miss. 15, 148 So. 226; Dement v. Summer, 175 Miss. 290, 165 So. 791; Crosby Lumber Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285.
Argued orally by W.I. Stone, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant was indicted for murder and convicted of manslaughter. He is but little more than a youth and has been deaf and dumb all his life. His method of communication is through a crude course of sign language with his foster-mother as interpreter. His attorney was thus greatly hampered in getting before the jury any intelligible account of the homicide from appellant's standpoint, and other than appellant there was no near-by eye-witness. Appellant's general reputation was shown to be good, and this without dispute.
The principal assignment of error is based upon a special bill of exceptions, which is as follows: "In the trial of this cause in the argument of the district attorney he said: `This man is no ignorant negro. He is a deaf and dumb brute and when he makes up his mind to satisfy his lust he will not care whom he satisfies it on.' Defendant's counsel objected and moved the court to rebuke the district attorney and to instruct the jury to disregard this. The court ordered the district attorney to stay within the record and told the jury not to pay attention to anything outside the record."
Counsel for appellant say that this was not argument but was abuse and unjustified denunciation, and that what was done by the court in response to the objection was as if the court had done nothing at all. Counsel assert that what the court said was the same old stereotyped expression which is nearly always heard from the trial bench when an objection is made to improper argument; that it means nothing to a jury, and is merely a short-cut excuse by which to avoid a ruling by the court rather than a direction which has any real sense to it. And counsel say in effect that appellant, handicapped as he was in getting his defense before the jury, because of his affliction, should have aroused sympathy instead of abuse and sinister suggestion.
The rule of procedure in cases of improper argument is laid down in Brush v. Laurendine, 168 Miss. 7, 150 So. 818, 820, and henceforth the problem is in the particular facts to which the rule there announced is to be applied. For the reason hereafter mentioned we do not undertake to say whether the bill of exceptions brings this case within the rule of error, but we use it as an occasion to say that we can recognize one thing as certain, and that is that, whatever our decisions in particular cases, the bar of this state is never going to be satisfied with any sanction, upon whatever ground it is put, of the handling of objections to improper arguments by the trial judge when no more is said by him than the hackneyed expression "stay in the record," and merely to the jury to regard nothing not in the record.
Nevertheless our duty here in this court of appeals is clear. While it is the obligation of this court to exert its authority to the end that trials shall be fair, recognition must be given to the fact, as has been for many years in this jurisdiction as well as elsewhere, that technical perfection in the conduct of litigation is a hopeless expectation and must not be required, even though some progress may be demanded as the years go by. Thus it was said in Brush v. Laurendine, supra, on this subject of improper arguments that "the recent opinions by this court have shown a tendency to more strongly insist upon . . . proper standards in this respect than was formerly the course of adjudication." At the same time, however, and in the same case, it was further said "that it must appear as probable that the argument may have had a harmful influence on the jury." It appears obvious to us that we have no business to send cases back for retrials at the expense of the taxpayer because of error, when the error has not been a real factor in the trial under review.
There is no probability here, that is to say, likelihood, that the improper argument had any harmful influence on the jury. Under this record it would be hard to see how the jury could honestly have done less than to return a verdict of manslaughter, which they did, — whence it must follow that the improper argument could have done appellant no real harm.
Affirmed.
SPECIALLY CONCURRING OPINION.
I think it should be further said, as bearing upon the justification of the remarks of the district attorney, that the testimony on behalf of the state in this case, standing alone, did evidence brutishness and a lust for blood on the part of the defendant — at least it disclosed such a picture as that the district attorney was not wholly unwarranted in drawing that conclusion, especially since, under the circumstances here, the jurors must have known that the use of the word "lust" had reference only to lust for blood.