McLean, J.,
delivered the opinion-of the court.
The appellant was indicted for murder, convicted of manslaughter, and sentenced to the penitentiary. The appellant was an employee of the Deemer Lumber Company, and one Dr. Davis was the surgeon or physician of the company. It was the rule or cnstom of the company to deduct from the wages of its employees the sum that might be due its surgeon. The appellant was indebted to Dr. Davis in the sum of ten dollars, and the lumber company held up the payment of this sum of money for the purpose of permitting the settlement between its surgeon and the appellant as to what was due Dr. Davis. This seemed to be the cause or origin of the difficulty. As to what occurred immediately before and just at the time of the killing, which terminated in the appellant shooting Dr. Davis and Dr. Davife shooting appellant, the evidence is conflicting. In view of the fact that the case is to be reversed, we do not deem it proper to express any opinion one way or the other upon this evidence.
In order to support the theory of the state as to what occurred at the time of the fatal encounter, the dying-declarations of Dr. Davis were admitted in evidence. As stated, and as argued by counsel for both the state and the appellant, the case hinges on the question: (1) Whether or not the dying declarations were admissible (this may be termed “a dying declaration case”); (2) The reference of counsel for the state, in -his closing argument, to the failure of the defendant to testify. It is altogether unnecessary for us to consider the action of the court below relative to the dying declarations, oías to any of the instructions which were given or refused, except to say that instruction No. 6, given for the state (which the reporter will copy in full), should not have been given. As to whether this instruction, standing alone, would be sufficient to reverse the case, it is not now necessary to decide.
[199]*199The competency of dying declarations is exclusively for the consideration of the court. Having once decided that it is competent, that the party was of the frame of mind required by the law to authorize the admission of Ms dying’ declarations, tbe power of tbe court over that question is at an end.
It then becomes the province of the jury to decide upon the credibility, who are at liberty, in doing so, to take into consideration all the circumstances under which the declarations were made, including those already proved to the court, and to give to the evidence only such credit or force as, upon the whole, they might think it deserves. But, when the court has once passed upon the competency of the evidence, its duty then ends. As was said by this court in Thompson v. State, 73 Miss. 584, 19 South. 204: “We have never perceived upon what principle tbe trial courts bave acted in singling out particular portions of tbe evidence in a cause, and telling tbe jury that it ought or might consider this, that, or another part of the evidence, in connection with the other evidence in reaching a verdict. By admitting the evidence tbe court has declared its competency, and tbe jury should be left to its function of determining the weight and effect to be given to it./
Careful, protracted, and repeated examinations of the voluminous record have satisfied us that there is reversible error relative to the argument made by the prosecuting counsel. During the closing argument of the counsel representing the state, the counsel referred to tbe failure of the defendant to testify. There is some controversy between tbe counsel for tbe state and counsel for the defendant as to just exactly what this statement was. The court, however, puts in the record what-his recollection of this was, and we are bound to accept tbe statement of tbe court as being the true and correct interpretation and' language of counsel.
The record shows this: “The court recollects the matters referred to in the testimony, and was watching [200]*200the arguments of counsel very close; and I recollect that defendant’s counsel had commented on the fact that, if Dr. Davis had gotten well and defendant had died, Dr. Davis would have been on trial, perhaps, instead of the defendant, on a similar charge, and that counsel for the state, Mr. Byrd, in alluding to that, quoted from counsel for the defendant and said: ‘If that was true, he would have put Blankenship and other witnesses up, and Dr. Davis would have mounted the stand and told how that occurred.’ This statement being objected to, the court promptly sustained the objection and instructed the jury not 'to regard it; and the court also instructed the jury not to regard any statement as to the defendant not testifying. And I will also state that the instructions asked for by the defendant on that point were given prior to the opening of the arguments by counsel, and those instructions were read by counsel for the defendant to the jury, and they were fully informed thereby, by defendant’s counsel, that no prejudice could result from the defendant’s failure to testify.”
It is urgently and forcefully insisted by appellant that this was error, and reversible error. It must be borne in mind that, in the altercation- between Dr. Davis and the. defendant, both were shot, that there was a conflict in the evidence of the eyewitnesses as to what occurred at the time of the shooting, and that the dying declarations of Dr. Davis were material — in fact, the dying declarations constituted perhaps the most important and material part of-the evidence for the state. Section 1918 of the Code provides that: “The accused shall be a competent witness for himself in any prosecution for crime against him; but the failure of the accused in any case to testify shall not operate to his prejudice or be commented on by counsel.” This court, in Yarbrough v. State, 70 Miss. 593, 12 South. 551, in condemning any reference whatever by the prosecution for the failure of the defendant to testify, says-that: “The word ‘com[201]*201ment/ as employed in the statute, does not mean to criticise or condemn or anathematize the accused for his failure to testify. It forbids in unmistakable language any comment, friendly or unfriendly. It forbids any remark of any character in any words upon the failure of the accused to testify. The attention of the jury is not to be called to the fact at all by counsel”- — and for the reason, alone, that comment was made by the counsel upon the failure of the defendant to testify, a new trial was granted.
In Reddick v. State, 72 Miss. 1008, 16 South. 490, the question was again before this court, and in that case this court says: ‘ ‘ The counsel for the state himself admits that, referring to the alleged admission made by the prisoner to the state’s witness Swayze, he used this language, viz.: ‘And he has not denied it.’ He further admits that when the prisoner’s counsel interrupted him, suggesting the impropriety of his comment, he corrected himself, and said: ‘It has not been denied.’ The counsel making the comment, on the hearing of a motion for a new trial, testified that it was not his intention to refer to the fact that the defendant failed to take the stand in his own behalf; but his intention was immaterial, if in fact he used such language as could be reasonably construed to be a comment, and an unfriendly one, too, upon the failure of the accused to testify. The court below so construed tbe remark. We so construe it, and the jury without doubt so understood it.
Free access — add to your briefcase to read the full text and ask questions with AI
McLean, J.,
delivered the opinion-of the court.
The appellant was indicted for murder, convicted of manslaughter, and sentenced to the penitentiary. The appellant was an employee of the Deemer Lumber Company, and one Dr. Davis was the surgeon or physician of the company. It was the rule or cnstom of the company to deduct from the wages of its employees the sum that might be due its surgeon. The appellant was indebted to Dr. Davis in the sum of ten dollars, and the lumber company held up the payment of this sum of money for the purpose of permitting the settlement between its surgeon and the appellant as to what was due Dr. Davis. This seemed to be the cause or origin of the difficulty. As to what occurred immediately before and just at the time of the killing, which terminated in the appellant shooting Dr. Davis and Dr. Davife shooting appellant, the evidence is conflicting. In view of the fact that the case is to be reversed, we do not deem it proper to express any opinion one way or the other upon this evidence.
In order to support the theory of the state as to what occurred at the time of the fatal encounter, the dying-declarations of Dr. Davis were admitted in evidence. As stated, and as argued by counsel for both the state and the appellant, the case hinges on the question: (1) Whether or not the dying declarations were admissible (this may be termed “a dying declaration case”); (2) The reference of counsel for the state, in -his closing argument, to the failure of the defendant to testify. It is altogether unnecessary for us to consider the action of the court below relative to the dying declarations, oías to any of the instructions which were given or refused, except to say that instruction No. 6, given for the state (which the reporter will copy in full), should not have been given. As to whether this instruction, standing alone, would be sufficient to reverse the case, it is not now necessary to decide.
[199]*199The competency of dying declarations is exclusively for the consideration of the court. Having once decided that it is competent, that the party was of the frame of mind required by the law to authorize the admission of Ms dying’ declarations, tbe power of tbe court over that question is at an end.
It then becomes the province of the jury to decide upon the credibility, who are at liberty, in doing so, to take into consideration all the circumstances under which the declarations were made, including those already proved to the court, and to give to the evidence only such credit or force as, upon the whole, they might think it deserves. But, when the court has once passed upon the competency of the evidence, its duty then ends. As was said by this court in Thompson v. State, 73 Miss. 584, 19 South. 204: “We have never perceived upon what principle tbe trial courts bave acted in singling out particular portions of tbe evidence in a cause, and telling tbe jury that it ought or might consider this, that, or another part of the evidence, in connection with the other evidence in reaching a verdict. By admitting the evidence tbe court has declared its competency, and tbe jury should be left to its function of determining the weight and effect to be given to it./
Careful, protracted, and repeated examinations of the voluminous record have satisfied us that there is reversible error relative to the argument made by the prosecuting counsel. During the closing argument of the counsel representing the state, the counsel referred to tbe failure of the defendant to testify. There is some controversy between tbe counsel for tbe state and counsel for the defendant as to just exactly what this statement was. The court, however, puts in the record what-his recollection of this was, and we are bound to accept tbe statement of tbe court as being the true and correct interpretation and' language of counsel.
The record shows this: “The court recollects the matters referred to in the testimony, and was watching [200]*200the arguments of counsel very close; and I recollect that defendant’s counsel had commented on the fact that, if Dr. Davis had gotten well and defendant had died, Dr. Davis would have been on trial, perhaps, instead of the defendant, on a similar charge, and that counsel for the state, Mr. Byrd, in alluding to that, quoted from counsel for the defendant and said: ‘If that was true, he would have put Blankenship and other witnesses up, and Dr. Davis would have mounted the stand and told how that occurred.’ This statement being objected to, the court promptly sustained the objection and instructed the jury not 'to regard it; and the court also instructed the jury not to regard any statement as to the defendant not testifying. And I will also state that the instructions asked for by the defendant on that point were given prior to the opening of the arguments by counsel, and those instructions were read by counsel for the defendant to the jury, and they were fully informed thereby, by defendant’s counsel, that no prejudice could result from the defendant’s failure to testify.”
It is urgently and forcefully insisted by appellant that this was error, and reversible error. It must be borne in mind that, in the altercation- between Dr. Davis and the. defendant, both were shot, that there was a conflict in the evidence of the eyewitnesses as to what occurred at the time of the shooting, and that the dying declarations of Dr. Davis were material — in fact, the dying declarations constituted perhaps the most important and material part of-the evidence for the state. Section 1918 of the Code provides that: “The accused shall be a competent witness for himself in any prosecution for crime against him; but the failure of the accused in any case to testify shall not operate to his prejudice or be commented on by counsel.” This court, in Yarbrough v. State, 70 Miss. 593, 12 South. 551, in condemning any reference whatever by the prosecution for the failure of the defendant to testify, says-that: “The word ‘com[201]*201ment/ as employed in the statute, does not mean to criticise or condemn or anathematize the accused for his failure to testify. It forbids in unmistakable language any comment, friendly or unfriendly. It forbids any remark of any character in any words upon the failure of the accused to testify. The attention of the jury is not to be called to the fact at all by counsel”- — and for the reason, alone, that comment was made by the counsel upon the failure of the defendant to testify, a new trial was granted.
In Reddick v. State, 72 Miss. 1008, 16 South. 490, the question was again before this court, and in that case this court says: ‘ ‘ The counsel for the state himself admits that, referring to the alleged admission made by the prisoner to the state’s witness Swayze, he used this language, viz.: ‘And he has not denied it.’ He further admits that when the prisoner’s counsel interrupted him, suggesting the impropriety of his comment, he corrected himself, and said: ‘It has not been denied.’ The counsel making the comment, on the hearing of a motion for a new trial, testified that it was not his intention to refer to the fact that the defendant failed to take the stand in his own behalf; but his intention was immaterial, if in fact he used such language as could be reasonably construed to be a comment, and an unfriendly one, too, upon the failure of the accused to testify. The court below so construed tbe remark. We so construe it, and the jury without doubt so understood it. It is true that, immediately on the prisoner’s counsel excepting to the language of the counsel for the state, the court instructed the jury that the district attorney was prohibited from commenting on the defendant’s failure to take the stand in his own behalf, and that the jury must not consider any such comment. But this action of the court could not and did not undo the wrong already done. The statute forbids absolutely any comment on the failure of the accused to testify, and it is the right [202]*202of every person charged with crime to insist that he enjoy this statutory immunity from criticism by hostile counsel; and the disregard of this plain statute, and the decisions of this court upon it, by the state’s own counsel must reverse the judgment appealed from in this case” — referring to Yarbrough v. State, 70 Miss. 593, 12 South. 551.
In Sanders v. State, 73 Miss. 444, 18 South. 541, this question was again before the court, and for the third time this court, in the most positive language, condemned ' any reference whatever by counsel for the state to the failure of the defendant to testify, and on that ground alone reversed the case. In this latter case ■ the court said: “It is true the court promptly rebuked counsel, and directed the jury to disregard the fact • alluded to, and counsel then asked that his remarks be considered as withdrawn; but the court, for the second time, held that this did not cure the error.” In Boyd v. State, 84 Miss. 414, 36 South. 525, this court held that it was reversible error for the state to prove upon the trial in the circuit court that the defendant did not testify before the justice of the peace who conducted the preliminary investigation.
No ingenuity, however artful, no subtlety, however refined, can escape the conclusion that this statement made by the prosecuting counsel held up to the jury the failure of the defendant to testify. It was a thrust, sharp and incisive as a rapier, at the appellant that he should be condemned for his failure to testify. If the other man, Dr. D'avis, were on trial, he would be more frank, and not be afraid of a full disclosure; but this defendant was afraid of a full disclosure, and hence dared not testify. This was the necessary and inevitable effect produced upon the mind of the jury. If prosecuting counsel expect this court to punish violators of the law, they themselves must obey the law, the plain and positive requirements of the statute. In their zeal and earn[203]*203estness to secure convictions they must confine themselves to legitimate argument, such, at least, as has not been expressly prohibited by the legislature, and also condemned by the court of last resort.
For this error the judgment is reversed.
Reversed.