Mississippi Supreme Court, 1942

Fowler v. State

Mississippi Supreme Court · Decided December 7, 1942 · Anderson

10 So. 2d 765; 193 Miss. 596; 1942 Miss. LEXIS 157 (Southern Reporter, Second Series)

Counsel

W.C. Fowler was convicted of murder, and he appeals. Affirmed. John W. Barbee, of Hernando, and W.I. Stone, of Coffeeville, for appellant. We submit that if there ever was a case where a mistrial should have been entered this is the case. The District Attorney had been overruled and rebuked by the court, and Mr. Denman, the special prosecutor, immediately jumped up and said, "We will show by the Doctor that he was shot in the back." This furnished an instance for the summary action by the court. Remember that this was at the very threshold of the hearing of the testimony and the statement by the special prosecutor was made in response to the ruling of the court and was highly prejudicial. Our objection was sustained but we had a right to more than that; we had a right to have a mistrial entered and we availed ourselves of the privilege of asking for it; the motion was overruled. Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, and Richard Denman, of Greenwood, for appellee. The court instructed the jury to disregard the statements of counsel for the state and be governed only by the testimony of the witnesses, and if the statements made by counsel should be considered as prejudicial, we respectfully submit that in the light of the ruling of the court excluding the testimony and the later testimony of the witness, Dr. Williams, that the statements do not constitute reversible error. Dr. Williams testified that the bullet entered the deceased's body in the rear over the left hip bone and kidney and about four inches from the spinal column and that the same bullet came out of his body at or near the appendicial scar on the right and in front. We respectfully submit that there is no error in the conduct and trial of the case, but if we are mistaken as to this, we confidently assert that in the light of all of the testimony there is no prejudicial error in the record. Argued orally by W.I. Stone, for appellant, and by Richard Denman, for appellee.

Opinion of the Court

Anderson, P. J.,

delivered the opinion of the court.

Appellant Fowler shot Sam Newton to death with a pistol. He was indicted, tried and convicted of the murder of Newton and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.

■ The evidence showed beyond a reasonable doubt and to a moral certainty that appellant took the life of the deceased when the latter was unarmed and making no demonstration of any kind whatsoever towards him indicating a purpose to take his life or do him any bodily harm. We are of the opinion that there is only one assignment of error that calls for. a discussion by the court. That grew out of the direct examination of Ferrell, a witness for the state, which follows:

“Q. He was in that position when Mr. Fowler shot him in the back?' A. Yes, sir.

“Objection: The defendant objects — ‘Oh, we object, and ask the Court to instruct the jury not to reg’ard it. ’ ”

Objection sustained.

“Court (to jury): Gentlemen, you will not regard the question just asked by counsel and the answer of the witness. It is a statement of the District Attorney and not of the witness.

“Mr. Stone: I submit, counsel should be ordered not to make such statements before the jury.

“Mr. Denman: We will show by the Doctor that he was shot in the back.

*599 ‘ ‘ Court: Don’t regard that statement, gentlemen. The witness will testify and not counsel. Ton will disregard any statement made by counsel. The only proof you will accept is the testimony of the witnesses before you. The testimony will be developed by the witnesses themselves. ’ ’

It will be noted that the District Attorney assumed by the first question above quoted that appellant shot the deceased in the back. Appellant moved the court for a mistrial, which was overruled. It is argued that what occurred amounted to permitting the District Attorney to testify that the deceased was shot in the back. "We are of opinion that in view of the ruling of the court in the presence of the jury in connection with the evidence in the case no harm resulted from the question of the District Attorney and what followed. Dr. Williams, who examined the deceased a few minutes after he was shot, testified, and his evidence was undisputed, that deceased was shot in the back, the bullet coming out somewhere on the other side of the body.

Affirmed.

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