State v. Lee

66 Mo. 165

• Court: Supreme Court of Missouri
• Decided: October 15, 1877
• Status: Published

Opinion

Henry, J.

— The defendant was indicted for the murder of George Humphreys on the 20th of January, 1875, and was convicted of manslaughter in the second degree. On the trial of the cause, Mrs. Humphreys, widow of the deceased, was called as a witness for the State, and after she had testified, the State, against objection of defendant, was permitted to read as evidence to the jury her testimony taken before the justice of the peace on the preliminary trial of the accused. It certainly needs neither argument nor citation of authorities to show that such evidence was inadmissible, and upon what principle it was admitted we are at a loss to conjecture. It could not have been to impeach her, for she was the State’s witness. It could not have been used to refresh her memory, for it was read to the jury, and this after she had concluded her testimony. A deposition in a civil suit would- not have been admissible under such circumstances.

The evidence of threats made by deceased against the accused, was competent evidence, and the court erred in excluding it from the jury. State v. Alexander, p. 148, ante decided at this term, and cases there cited.

The prosecuting attorney, in his closing address to the jury, made the following remarks : “ Defendant’s attorneys know the law. "Why did they not prove defendant’s good character? He had not a good character, therefore they dare not attempt to prove defendant’s good character. They could not do it, and dare not attempt to do it.” A prosecuting attorney gets out of the line of his duty when, in his argument to the jury, he makes a statement of a maferial fact, not proved. The State would not have been allowed to prove the fact which he volunteered to state to the jury, unless the accused had introduced evidence to show that he bore a good character, and the court should not have permitted the remarks of the attorney to pass without a rebuke, which would have taken from them their sting. A proper rebuke would probably have cured the error. Such conduct of a prosecuting attorney was condemned in the case of The State v. Kring, 64 Mo. 591, and will be as often as it is properly brought to the notice of this court. It should not be tolerated in civil proceedings, and will not be in criminal cases. It is not necessary to place the reversal of the judgment herein on that ground, and therefore, we will not determine whether of itself, it would be a sufficient ground for reversal, but trust that we shall have no occasion again to consider the question.

We shall not notice the other errors complained of but for the errror committed in permitting the State to supplement. the evidence of Mrs. Humphreys, with her testimony taken before the committing magistrate, and in refusing to permit the accused to prove the threats made against him .by the deceased; the judgment is reversed, and the cause remanded.

All concur.

Reversed.