Fort v. State

85 S.W. 236, 74 Ark. 210, 1905 Ark. LEXIS 425

• Court: Supreme Court of Arkansas
• Decided: February 11, 1905
• Status: Published

Opinion

McCurroch, J.,

(after stating the facts.) It must be conceded that the remarks of counsel for the State were highly improper. In effect, without having testified as a witness, he assured the jury that he had been reared in the city of Camden, had known the accused, and had as good opportunity to know his mental condition as any of the witnesses who had testified, and that he had never before heard that accused was lacking in mental capacity. It is difficult, frequently, for an appellate court to determine how far improper remarks of counsel have prejudiced the rights of the opposing litigant in the trial below, and each case must be determined by its own peculiar circumstances. There have been many decisions of this court on-the subject, some holding that the improper remarks of counsel were prejudicial, and some that they were not. German-American Ins. Co. v. Harper, 70 Ark. 305; Marshall v. State, 71 Ark. 416; Carroll v. State, 71 Ark. 403; Puckett v. State, 71 Ark. 62; Burks v. State, 72. Ark. 461. But we cannot say that no prejudice resulted from the improper remarks in this case. The sole issue in dispute, as far as raised by thé testimony introduced in behalf of appellant, was as to mental capacity to commit the offense. Both sides introduced proof directed to that point, and we cannot say that the jury w.ere not influenced, in making up their verdict, by the additional weight of the views expressed by the prosecuting attorney as to a matter which he asserted to be within his knowledge,, or that, without this statement, the jury would have found that the defendant possessed the requisite mental capacity to make him responsible for the crime.

Therefore the judgment is reversed, and the cause remanded for a new trial.