Aldridge v. State

177 So. 765, 180 Miss. 452, 1938 Miss. LEXIS 3

• Court: Mississippi Supreme Court
• Decided: January 3, 1938
• Docket: No. 32876.
• Status: Published

Opinion

Smith, O. J.,

delivered the opinion of the court.

This is an appeal from a conviction of murder followed by a sentence to the penitentiary for life.

The evidence clearly presents a case for the jury, including the credibility of the witness Louis James Murrell. The appellant did not testify, and two special bills of exception were filed presenting objections to the argument of an attorney associated with the prosecution; the ground, thereof being that the argument constituted a comment on the failure of the appellant to testify.

It is not clear from the first of these bills of exception whether the argument was susceptible of this construction, and the court seems to have held that it was not. In order for this ruling to be reviewed, it must clearly appear that comment was made by the attorney on the failure of the appellant to testify.

The second bill of exceptions was not signed' by the trial judge, but by two attorneys at law who were present and heard the argument. The language of the attorney set forth seems to be capable of being construed as a comment on the failure of the appellant to testify. No ruling on this objection is set forth, and the case was submitted to tlie jury without any request that it be withdrawn from them and a mistrial entered.

If it appeared that the court overruled the objection, the ruling could be here reviewed. Had it sustained the objection, then, in order to preserve any right the appellant had because of the argument, it was necessary for him to request a mistrial. Where such an objection is sustained, the appellant has obtained the ruling requested, and without a request for a mistrial, he waives any further complaint of the argument. Guest v. State, 158 Miss. 588, 130 So. 908, and Floyd v. State, 166 Miss. 15, 148 So. 226.

Affirmed.