W.A. Shipman and John C. Street, for appellant.
I. The court below erred in giving an improper instruction for the state which assumed as a proved and established fact a matter of most serious moment, and upon which defendant's defense was entirely based; that is, that there was no overt act on the part of the deceased.
The instruction is doubtless a correct statement of an abstract legal proposition. The vice of it is that it assumes as an undisputed fact that the defendant is estopped to plead self-defense, because there was no overt act by the deceased. There is no qualification of this bare statement, which assumes there was no overt act on the part of the deceased, such as, "If the jury believe from the evidence that the deceased was guilty of no overt act." Such an instruction, with the testimony in such sharp conflict, regarding an overt act by the deceased, was most inapplicable and prejudicial. It tells the jury that the shooting of the deceased by the appellant cannot be justified on the ground of self-defense, because any fear or apprehension of being done great bodily harm, etc., if such he had, was unwarranted; must have been fanciful and imaginary, because not engendered by an overt act on the part of the deceased. Holly v. State, 55 Miss. 424 ; I.C.R.R. Co. v. Cole, 113 Miss. 896 , 74 So. 766; Meridian L.V. Co. v. Godfrey, 101 Miss. 565 ; Jackson L. T. Co. v. Taylor, 112 Miss. 60 Miss., 72 So. 856.
II. The court below erred in rendering judgment on the verdict returned by the jury in said cause, because of certain remarks of the district attorney to the jury in the closing argument for the state, at a time when the defendant's counsel had no opportunity to make reply thereto. It was highly improper, unfair and prejudicial to the defendant for the district attorney to comment unfavorably upon the failure to introduce a witness, who had been at all times identified with the prosecution; who had twice already testified for the state; whom the record shows conclusively to have been hostile to the appellant; with whom counsel for the prosecution had talked and conferred; brought into court under subpoena; who had been produced and sworn as a witness for the state, placed under the rule along with all the other witnesses for the state, and whose testimony counsel for the state deliberately withheld by refusing to call him to the witness stand and
examine him, notwithstanding he was, and must have been friendly to the prosecution and to have been the only witness for the state, save Mrs. Wheat, who claimed to have been present and who saw and heard all that occurred at the time of the homicide.
No inference prejudicial to the defendant should be drawn from such refusal of the appellant to base his defense, in any degree, upon the testimony of this witness, discarded by the state. It is perfectly manifest that argument of this kind, by the representative of the state, was calculated to, and no doubt did, influence and mislead the jury against the defendant; and especially is this true, when made in the closing argument, and at a time when counsel for the defendant was without opportunity of making reply thereto. Brown v. State, 54 So. 305; Crawford v. State, 112 Ala. 661 , 21 So. 64; State v. Cousins, 58 Iowa, 250, 12 N.W. 281; State v. Rosier, 55 Iowa 517 , 8 N.W. 345; Brock v. State, 123 Ala. 24 , 26 So. 329; State v. Fitzgerald, 68 Vt. 125 , 34 At. 429; People v. Quinby, 6 Calif. App. 482 at 491, 92 P. 493 ; People v. Fowler, 104 Mich. 449 , 62 N.W. 572; Gurley v. State, 101 Miss. 190 , 57 So. 565. In Harwell v. State, 93 So. 366, this court, by Judge ETHRIDGE, condemns improper remarks by the district attorney, and while this was a case in which the improper remarks were again directed to the failure of the defendant to testify, yet, the condemnation of the court goes beyond the specific complaint and condemns such improper remarks by prosecuting attorneys. Martin v. State, 63 Miss. 505 ; 3rd Syllabus, Darby v. State, 84 So. 6.
III. The court below erred in attempting to withdraw its approval and allowance of special bill of exceptions No. 2. It will be noted that this special bill of exceptions was allowed and signed by the trial judge and filed on May 3, 1924; that three days later, that is to say on May 6, 1924, the judge attempted to withdraw or refuse said bill of exceptions. This action on the part of the trial judge was taken upon his own motion, no application therefor being
presented by the district attorney, or other representative of the state. The general rule is that a bill of exceptions, when signed and delivered by the trial judge, becomes a part of the record and is not thereafter subject to change, alteration or modification, either by the court which grants it or the appellate court. That this court is in accord with the foregoing rule is shown by the decision rendered in Bridges v. Kuykendall, 58 Miss. 827 . See also Kelly v. State, 113 Miss. 850 , 74 So. 679 and Dreyfus v. Cage, 62 Miss. 605 .
IV. After the jury had returned into court with the verdict, and after the clerk had received and read the same, instantly, one of the jurors fell to the floor of the courtroom as one dead, and so remained and continued for a space of from five to ten minutes, seemingly without life, and certainly unconscious of everything, during which time he was attended by one or two physicians, that during a part of this time many spectators rushed forward and crowded around the unconscious juror, and mingled with the other jurors before the bench of the court; that after the said juror was taken up from the floor, and while unable to stand erect, and while he may have remained in a semi-unconscious condition, the court proceeded to take a poll of the jury, including the said stricken juror.
It may be contended by counsel for the state that the polling of the jury is not necessary to complete the rendition of the verdict, but it is a right given the defendant under the law, and when he elects to exercise this right, most certainly he is entitled to the individual response of each of the twelve; and if it reasonably appears that one of the jurors, by reason of mental incapacity at the time, is unable to give an intelligent response, then the defendant is not accorded the right which the law gives him.
F.S. Harmon, special assistant attorney-general, for the state.
I. The trial judge did not err in granting the instruction for the state. Learned counsel insists that the trial court
erred in granting the instructions for the state found on page 315. This court will find, however, that counsel admits that this instruction is a correct statement of an abstract proposition. Counsel declared that the granting of it constitutes reversible error because of its abstract nature, in that it is based on the hypothesis that there was no overt act here justifying the defendant. The court will find from a reading of the instruction that such a deduction is unwarranted. Furthermore, Instructions No. 10-20 cover the same identical point most elaborately for the defense.
II. There is no reversible error in the language used by the district attorney in his closing argument, as set forth in the first bill of exceptions. Both the witnesses for the state and for the defense admitted that Wiley Ladner, the chauffeur of the car in which the searching party made the trip to Mitchell's home, was an eyewitness to the homicide. Wiley Ladner testified for the state at the preliminary hearing before the justice of the peace. He testified for the state at the habeas corpus
hearing before the chancellor. He appeared at this trial under subpoena as a witness for the state, was sworn along with the other witnesses for the state, and with them was placed under the rule. For reasons best known to himself the district attorney did not put Wiley on the stand. Neither did the attorneys for the defendant use him.
In arguing the case before the jury, the appellant's attorney, according to the bill of exceptions, turned to counsel for the defendant and asked if it was possible that the great state of Mississippi was attempting to suppress the testimony of Wiley Ladner, and asked the district attorney, "where is Wiley Ladner, why hasn't he given you the benefit of his testimony?"
When the attorney for the defendant had finished his argument, and the district attorney arose to close his case, we find, according to the Special Bill of Exceptions that he repeated to the jury these questions which opposing
counsel had asked him with respect to the state's failure to put Wiley Ladner on the stand. And having repeated these questions, the district attorney then said: " In reply I want to ask them where, oh, where is Wiley Ladner?" and then went on to point out that Wiley Ladner was the friend of Clarence Archer; employed by him, drove him across the country, a member of the party when they made the location, an eyewitness to the killing, and a friend of Clarence Archer rather than a friend of Travis Wheat " and in answer to their question, I want to ask them, where, oh, where is Wiley Ladner?" It thus appears at the very outset of this discussion that every remark made by the district attorney on this score was "in reply" to questions asked by counsel for the accused.
It is, therefore, incongruous to find the appellant's attorneys now crying out for reversal of this cause because the district attorney simply answered a question which they asked him. If it was erroneous, to comment on the failure to use Wiley Ladner as a witness, then the error was committed by counsel for appellant, who cannot now complain because the attorney for the state answered a question which they asked him. The simple answer to the appellant's contention is that his attorneys opened up this entire matter and the district attorney did nothing more than he had a right to do under the circumstances, viz.: Reply to the questions asked him. Counsel has cited numerous authorities and now we point out their inapplicability on the particular facts of this case.
In Gurley v. State, 101 Miss. 190 , 57 So. 565 and Harwell
v. State, 93 So. 366, it was the failure of the defendant himself to testify in his own behalf that was commented on by the district attorney. Such comment is directly forbidden by section 1918, Code of 1906, and it is well settled that such comment constitutes reversible error. Similarly in Kelly v. State, 113 Miss. 850 , 74 So. 679, the district attorney went out of the record and discussed the defendant as "a bad negro and I want him," although the evidence did not support such a characterization. In, counsel for one side sought to comment on facts which were not proved and the court quite properly stopped it.
Turning now to Brown v. State, 54 So. 305 (1911), we find that here the district attorney in his closing argument commented in strong language upon the failure of the appellant to introduce as witnesses his father and brother. The court held this to be reversible error. Be it noted, however, by way of a distinction that here it was the district attorney himself who had commented upon this question and attorney for accused in his argument made no reference whatever to this matter. In other words, the district attorney himself was responsible for this question being brought before the jury. Appellant's counsel also cites Railroad Co. v. Weinstein, 99 Miss. 515 (1911), a civil suit for damages, wherein the trial court refused to stop counsel for the plaintiff in commenting upon the failure of the Railroad Company to use certain witnesses and refused an instruction telling the jury to disregard this statement. Here again, there is a valid distinction. It was the plaintiff who introduced this forbidden subject, the defendant did not bring this comment upon himself, as was done in the case at bar, but the defendant sought as soon as the subject was mentioned to have counsel for plaintiff stopped in the course of his argument, but the court erroneously failed thus to stop him.
The leading case on this entire subject is Western Atlantic R.R. Co. v. Morrison, 40 L.R.A. (Ga.) 84. Here the Railroad Company in the course of a damage suit had the fireman on the engine which did the damage in court, but did not use him as a witness, and counsel for the plaintiff commented on the failure to use the fireman. The court held that this argument was not improper and refused to declare a mistrial and the judgment of the trial court was affirmed on the ground that when the defense produced the witness in court so that he could have been
introduced and examined by the plaintiff, if they had chosen to do so, there could be no inference that the former knew anything detrimental to the company.
Surely what is sauce for the goose is also sauce for the gander, and while we do not here attempt to justify the comment of either side on the failure to use a witness, we do insist for the state that since both sides commented on it, no reversible error was committed.
III. The appellant was tried by a jury acceptable both to him and to the state. The verdict of said jury was regular and proper and the poll of the jury made at the request of counsel for the appellant indicated that this verdict was the true and lawful verdict of each and every juror. When the jury returned to the courtroom and delivered their verdict to the clerk and after the reading thereof by the clerk, "instantly without the passage of any appreciable time, juror S.C. Flynt then and there fell down upon the floor of the courtroom as one dead and so continued for a space of from five to ten minutes . . ."
The only purpose of the polling of the jury in open court is to ascertain whether or not the verdict of the jury as handed to the clerk is the true verdict of each and every man, and this gives any juror who was subject to undue pressure by his fellows an opportunity to state in open court whether or not the verdict rendered is his verdict. Let us see whether or not the law is satisfied. The evidence is undisputed that the verdict was in the handwriting of S.C. Flynt; and that S.C. Flynt himself brought the slip of paper containing the verdict into court and upon the direction of the trial judge handed same to the circuit clerk to be read. It is submitted that the mere fact that the verdict was in his handwriting and that his affirmative act in handing same to the clerk indicated beyond peradventure of a doubt, that the verdict rendered was his individual verdict. The written verdict had already been handed to the clerk and read by him and there is nothing whatever to indicate that any member of the
crowd did anything improper or made any improper advances to members of the jury. And in the absence of some affirmative showing that some actual impropriety occurred, nothing in the language used in the Bill of Exceptions is sufficient to justify a reversal of this cause.
IV. But this is not all. This Bill of Exceptions was marked filed on May 3, 1924, and in addition to this notation of the clerk, appears the following notation: "Refused as to Bill of Exceptions No. 2, This May 6th, 1924. J.Q. Langston, Judge." In other words, after the trial judge had signed this Bill of Exceptions, but while the term of court was still in session, and before his act had taken the form of finality, he marked the Bill of Exceptions as refused, and thus rescinded the action of May 3 when he signed the same. Counsel insists that the judge lost all control over the matter at the moment that the Bill of Exceptions was signed. A short answer to this contention is found in Dreyfus v. Cage, 62 Miss. at 606, where the court in respect to this identical matter said, "being a part of the record, it is not within the power of the judge who signed it after the expiration of the term of court, or of this court, to make or cause to be made any alteration in it."
The granting of Bills of Exceptions is purely a statutory process and the statute must therefore govern. We respectfully refer court and counsel to sections 579 and 580, Hemingway's Code, as covering this matter completely.
We respectfully submit that there is no error of law in this record sufficient to justify reversal of this case. There is a dispute as to the facts, but in this realm the action of the jury is of primary importance, and since the evidence for the state, if believed by the jury as it was believed, was sufficient to prove the murder of Travis Wheat and the presence of the necessary mental element in the mind of the appellant at the time he fired the fatal shot, the verdict of the jury must not be disturbed, and the judgment of the lower court should therefore be affirmed.
Argued orally by Jno. C. Street and W.A. Shipman, for appellant, and Francis Harmon, assistant attorney-general, for the state.