Mississippi Supreme Court, 1945

Easterling v. State

Mississippi Supreme Court · Decided February 12, 1945 · Griffith

20 So. 2d 840; 197 Miss. 381; 1945 Miss. LEXIS 296 (Southern Reporter, Second Series)

Counsel

A.S. Scott, of Laurel, for appellant. The verdict of the jury is contrary to the law and the evidence and the court erred in failing to sustain the defendant's motion for a peremptory instruction to the jury to find the defendant not guilty as to grand larceny. There was no testimony whatsoever by said witnesses as to the actual value of the suit of clothes, or even what it originally cost. In convicting for grand larceny, the taking of property of sufficient value to constitute the offense must be shown beyond all reasonable doubt. Francis v. State, 87 Miss. 493 , 39 So. 897; People v. Gilbert, 163 Mich. 511 , 128 N.W. 756, Ann. Cas. 1912A, 894. The indictment shows on its face that it does not sufficiently describe the property stolen and the indictment failed to therein state that a more perfect description of said property is to the grand jurors unknown. The indictment, by merely saying "a suit of clothes," does not conform to the law, unless the grand jurors so state that a more perfect description cannot be obtained, and when this is not done, proof cannot be offered of the kind and value of the clothes stolen. Harvey v. State, 188 Miss. 428 , 194 So. 925 . The court erred in failing to sustain the motion of defendant to discharge the jury and declare his case a mistrial when the district attorney in arguing the case for the state said to the jury, "The defendant has not furnished you a single witness who said that the defendant did not do it." May it please the court, the records show that the defendant did not testify in his own behalf. The records further show that the State of Mississippi introduced all the eyewitnesses to the breaking of the car and the stealing of the suit of clothes, except the defendant himself. We submit that it is the law of Mississippi that in the trial of a case where the State of Mississippi introduced all the eye-witnesses to the alleged crime, except the defendant and the defendant does not testify, the prosecuting attorney for the state cannot comment in any shape, form or fashion about the defendant failing to introduce any witnesses who denied that the defendant committed this particular crime. This is true for the simple reason that when the state introduces all the eye-witnesses that were present when the alleged crime was committed other than the party who is supposed to have committed the said crime, then any statement by the prosecuting attorney that no one had denied that the defendant committed the crime is in effect a comment on the failure of the defendant to testify and cannot be considered otherwise, under any conceivable situation. Smith v. State, 87 Miss. 627 , 40 So. 229; Prince v. State, 93 Miss. 263 , 46 So. 537; Reddick v. State, 72 Miss. 1008 , 16 So. 490; Harwell v. State, 129 Miss. 858 , 93 So. 366; Yarbrough v. State, 70 Miss. 593 , 12 So. 551. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee. Where there is any substantial, reasonable testimony which, conceding it is true, sustains case of party litigant, peremptory instruction should not be granted against such party. Justice et al. v. State, 170 Miss. 96 , 154 So. 265 . The district attorney in arguing the case for the state made a statement which was objected to and objection overruled, which is evidenced by bill of exceptions. The statement objected to is as follows: "The defendant has not furnished you a single witness who said that the defendant did not do it." Appellant contends that this was a comment by counsel on the fact that the appellant did not testify in his own behalf and violates Section 1691, Code of 1942. In view of appellant's defense in this case, an alibi, where seven witnesses took the stand and testified, several of them that the appellant was at the home of Mrs. Devine from five o'clock in the evening on the day the crime was committed until eight o'clock that evening, and the time of the crime having been fixed at six o'clock, or a few minutes thereafter, then upon being asked the question if they would tell the jury, or could tell the jury, that the appellant did not commit the crime, to which question they all answered in the negative, then their testimony was not worthy of belief, was worthless, and these witnesses were subject to the criticism made by the district attorney. It is obvious to the court that if a person is in a certain place from five until eight o'clock in the evening, he could not have been in another place, breaking open an automobile and stealing a suit of clothes. All of these witnesses who testified that the appellant was at Mrs. Roy Devine's at six o'clock, or a short time thereafter, if they were telling the truth, could have truthfully sworn and told the jury that the appellant, Easterling, did not steal the suit of clothes. Therefore, the statement of the district attorney that "the defendant has not furnished you a single witness who said that the defendant did not do it," was a correct statement and is supported by the record. See Prince v. State, 93 Miss. 263 , 46 So. 537; Heard v. State, 177 Miss. 661 , 171 So. 775 ; Church v. State, 182 Miss. 802 , 183 So. 525 . In a prosecution for robbery, the positive and unequivocal testimony of a state witness identifying the defendants as the persons who robbed him, such witness not being impeached in any manner known to the law, is sufficient to sustain a conviction, although several witnesses testified for the defendants as to an alibi. Coleman et al. v. State, 155 Miss. 482 , 124 So. 652 .

Opinion of the Court

*385 Griffith, J.,

delivered tbe opinion of tbe court.

Tbe only assignment requiring discussion is tbe complaint that in bis argument to tbe jury tbe district attorney, in violation of Sec. 1691, Code 1942, commented on tbe failure of appellant to testify. Tbe basis for tbis complaint is embodied in a special bill of exceptions wbicb, omitting tbe formal parts, is as follows:

“Tbe district attorney in arguing tbe case said: £Tbe defendant bas not furnished you a single witness wbo said that the defendant did not do it.’ ”

Tbis is all that is shown by tbe bill of exceptions. Tbe charge was grand larceny and tbe defense was an alibi. Appellant introduced six witnesses wbo testified that at tbe time laid by tbe two state’s witnesses, appellant was at the borne of a neighbor two or three blocks away from tbe scene. In bis cross-examination of four of these witnesses, tbe district attorney pressed upon them the question — or questions to that effect — whether they could swear that appellant did not commit tbe offense, to which they responded that they could not say. Of two of tbe witnesses, tbe district attorney did not make tbis inquiry, but we may assume that since be considered it of significance that tbe four wbo were specifically questioned did not say that appellant did not commit the offense, it was of equal significance that tbe other witnesses introduced did not so say, and in tbis we are referring to tbe probable *386 course of the argument and to what it may be that the attention of the jury was being directed, and not to the cogency, if any, of the argument.

In its ordinary signification the word “furnish” is'not synonymous with ‘ ‘ perform, ’ ’ so that it has been held that an agreement by a party to furnish services is not an agreement that he himself shall do the work or any part of it. See for instance Adams v. Feiges, 206 Wis. 183, 239 N. W. 446, 448. Upon similar principle, an assertion that a defendant has not furnished witnesses does include a comment that he has not furnished himself as a witness, unless the entire text in connection with which the assertion is made is sufficient to disclose that the meaning conveyed was one inclusive of the defendant himself. We have nothing before us of the associated assertions— nothing except what has above been quoted- — and of course we cannot assume that they were such as to supply a meaning other than that literally embraced in the quoted excerpt. It may be conjectured that the jurv understood the reference as . one including the defendant himself, but if we are to resort to conjecture as to what a jury understood, we would place prosecuting attorneys in such a strait-jacket as to unduly hamper them in the legitimate scope of their work.

Inasmuch, however, as an expression such as used in this case introduces the possibility that the jury may have thought of it as a reminder that the defendant had not testified, such an expression should not be used‘by a prosecuting attorney, and if used and its contextual connection when placed before us discloses a likelihood that the jury understood it as a comment on the failure to testify, we will of course apply the corrective by a reversal. But as already indicated, we cannot substitute conjecture for likelihood and must assume, if reasonably permissible, that the connection in which the argument was used rendered it legitimate, that is to say, that it did not violate the cited statute.

Affirmed.

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