Martin v. State

63 Miss. 505

• Court: Mississippi Supreme Court
• Decided: April 15, 1886
• Status: Published

Opinion

Arnold, J.,

delivered the opinion of the court.

The testimony was entirely circumstantial, and the slightest influence may have been deemed sufficient to turn the scales of impartial judgment one way or the other as to the guilt or innocence of the accused. In the argument to the jury, one of the counsel for the prosecution, not the district attorney, said to the jury, “ Martin, the defendant, is a man of bad, dangerous, and desperate character, but I am not afraid to denounce the butcher boy, although I may, on returning to my home, find it in ashes over the heads of my defenseless wife and children.”

This was an assumption or declaration of facts as to the character of the prisoner made by counsel without being sworn or examined as a witness, and of a nature well calculated to influence the jury against the prisoner. The general character of the prisoner had not been put in issue. If evidence had been offered by the prosecution to prove that his character was such as that attributed to him by counsel, it would, upon the plainest principles of law, have been rejected as incompetent. The prisoner was on trial for a specific offense, and it was his right under the law to be tried for that offense, upon competent evidence confined to that issue.

We are of opinion that the counsel for -the prosecution, in the matter above quoted, passed the bounds of legitimate advocacy, and that, under the circumstances of the case, the prisoner may have been, and probably was, thereby injured. Such declarations uttered by distinguished counsel, of high moral and social standing, in any case, would inevitably tend to prejudice the jury against the prisoner.

A jury trial should be conducted according to the law of the land, and the verdict of the jury should in all cases be a true response to the issue joined, according to the law and the evidence. It is among the highest of judicial functions to see that the law is impartially administered and to guard the jury box as far as possible from unlawful influences.

Much latitude is accorded to the discussion of counsel in performing the important duties which they owe to clients and to public justice. In its proper sphere the argument of counsel to the jury is subject to no censorship or restriction by the court, but it should never be permitted to degenerate into wanton abuse or unauthorized license. Within the limits of the testimony the argument of counsel is and should be free, but that freedom does not extend either to the statement or the assumption of facts, or to commenting upon facts not in evidence, to the prejudice of the adverse party. Perkins v. Guy, 55 Miss. 153; Cavanah v. State, 56 Ib. 299; Cross v. State, 68 Ala. 476; Wolffe v. Minnis, 74 Ib. 386; State v. Smith, 75 N. C. 306; Proffatt on Jury Trials, § 250.

Being counsel and witness in the same cause is not prohibited by law if counsel chooses to testify, but such a union of offices is permissible and tolerable only where counsel is sworn and examined like other witnesses.

It may sometimes be a difficult and delicate duty for the court to confine counsel to legitimate argument, but this is no reason why it should not be done when necessary to prevent the perversion of law and justice. Like other difficult and delicate duties, it should not be shunned or disregarded by those upon whom it is imposed. Justice should not be sacrificed on mere sentiments of delicacy. No human being should be stamped with the marks and brands of a felon out of deference to privileges claimed and asserted against him, which in fact do not exist in law.

*It is the duty of the presiding judge, as said in Perkins v. Guy and Cavanah v. State, supra, to interfere of his own motion to prevent a breach of the privilege of counsel, and if he fails to do so and the abuse of privilege is of such character as to produce the conviction that injustice resulted therefrom, the duty of this court is to apply the corrective by awarding a new trial.

The other errors assigned are not sustained, but for that eommitted in the argument of counsel the judgment is reversed.