Johnson v. State , 94 Miss. 91 ( 1908 )

Eletcher, J.,

delivered the opinion of the court.

This was a prosecution for assault and battery with intent to kill and murder. The evidence was conflicting as to which party fired the first shot, and, indeed, as to who was the aggressor in the difficulty.

The special bill of exceptions contains the following statement : “In the concluding argument by the district attorney, he said: ‘Gentlemen of the jury, there is another witness to this difficulty.. Where is she ? Where is the wife he says he loved so dearly ? Where is the wife he called his baby ? If the defendant had wanted a fair hearing of this caso, if he had been willing that the circumstances of the fight be fairly investigated, why did he not put her on the stand ? The state could not have her sworn and put on the stand, and the defendant could have done so. Where is she ?’ And the district attorney then pointed to the witness room. To the use of all of said language to the jury the defendant then and there objected, and moved the court to instruct the jury orally to disregard them, which objections and motions were overruled by the court, to which action of the court the defendant then and there excepted.”

There is a much stronger case for reversal than was Cole v-State, 75 Miss. 142, 21 South. 706, in which case this court held flatly that the district attorney should not comment upon the failure of the wife to testify; for in that case it does not appear,, as here, that timely objection was made, and that the district attorney proceeded in his improper argument with the full knowledge of the court.

Reversed and remanded.