Logsdon v. State

183 So. 503, 183 Miss. 168, 1938 Miss. LEXIS 230

• Court: Mississippi Supreme Court
• Decided: October 3, 1938
• Docket: No. 33410.
• Status: Published

Opinion

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,