Evans v. State , 98 Miss. 697 ( 1910 )

Anderson, J.,

delivered the opinion of the court.

The appellant, Lucy Evans, was convicted in the circuit court of Lincoln county of the unlawful retailing of whiskey and appeals to this court. The only witness for the state was Herbert Maxwell, who testified that he was employed by the city of Brookhaven as a detective to secure evidence to convict persons engaged in that city in the unlawful sale of intoxicating liquors; that he was to receive ten dollars, from the city for every conviction; that in pursuance of this employment he went to a house occupied by the appellant, and bought two glasses of whiskey from her, paying therefor fifteen cents a glass. The appellant, her daughter, and another woman testified that the house in which appellant resided was at the time of the alleged sale in part occupied by one Annie Smith, and that on the occasion testified to by Maxwell the appellant did not sell him any whiskey. Her daughter and the other woman testified in corroboration of Maxwell, that, he did buy the whiskey, but bought it from Annie Smith, who had part of the house rented, and not from the appellant. There is no conflict in the testimony as to the crime having been committed. The only question was as to the identity of the guilty party.

In the formation of the jury, two of the jurors, on their voir dire examination, stated they were neighbors of the state’s witness, Maxwell, and knew him. The appellant’s attorney peremptorily challenged these two jurors, who were thereupon excused by the court. The district attorney, in his closing argument of the case, referring to this fact, used this language: “Lanier (referring to appellant’s attorney) was afraid of the men who knew Maxwell, and didn’t want them to try this case. Therefore he excused two of the jury for that reason.” Appellant’s attorney objected to this statement by the district attorney. The court refused to take any action on such objection, and permitted- the statement to stand, to which action of the district attorney and the court appellant’s attorney excepted, and embodied the matter in a special bill of exceptions, which is in the record.

Under the facts of this case the language of the district attorney used in his closing argument was so manifestly prejudicial to the rights of appellant that it must be reversed on that ground alone. In effect the district attorney, with the sanction of the cpurt, said to the jury: “The state’s only witness must have told the truth, because the defendant challenged the two jurors who are his neighbors and know he is a truthful man.” It was árgument outside of the record, and based on no fact admissible in evidence under any circumstances.

The peremptory challenge to proposed jurors, given by law to a defendant in a criminal case, is an absolute right, which may not be questioned by either opposing* counsel or the court. The motive which may influence a defendant or his attorney in the exercise of such right is not the subject of inquiry, nor comment in the presence of the jury. If it were, then with as much reason and justice the most confidential communication between the defendant and his attorney would be.

Reversed and remanded.