Funches v. State , 125 Miss. 140 ( 1921 )

Holdex, J.,

delivered the opinion of the court.

The appellant, Neal Funches, was convicted of murder and sentenced to life imprisonment. The conviction rests wholly upon circumstantial evidence, which, we think, however, was sufficient to warrant the verdict of the jury. The appellant assigns numerous errors for reversal, buf we find merit only in two or three of the assignments, which we shall now discuss.

It is contended the court erred in refusing to allow counsel for appellant to further examine the jurors before exercising his peremptory challenges.

It appears that in impaneling the jury the court questioned the jurors on their voir dire and then requested that the state and defense ask any further questions desired through the court. After the jury had been fully questioned and qualified by the court, and questioned by counsel for the state and the defendant through,the court, counsel for defendant requested that he be permitted to ask further questions directly, or through the court, with the view of exercising his peremptory challenges. The court denied the request on the ground that full opportunity had been given to counsel for the state and the defendant to ask the jurors any and all questions they desired when the jurors were being qualified, and that counsel had then exercised this right by questioning each juror through the court. It does not appear from the record what the further questions were that counsel for defendant desired to ask the jurors.

' The rule followed by the lower court of requiring all questions to be asked jurors through the court is good practice, and is upheld by this court; but opportunity must be afforded the defendant to propound to the jury, through the court, such further questions, within the bounds of reason, as he may desire, with the view of exercising his right to challenge peremptorily. The privilege of such questioning by the defendant for peremptory purposes should not be denied.

The right to challenge peremptorily is sacred and valuable; and the exercise of it does not rest upon any legal qualification of the juror, but it may be exercised by the defendant for any peculiar reason, or no reason, and without legal cause. We do not know from the record here what question counsel desired to ask the jury, and therefore cannot say that the refusal of the court to permit the question was error and damaging to the rights of the defendant. The question may have already been asked and should not be repeated.

It is next contended by appellant that the court erred in allowing the prosecuting attorney to state to the jury in Ms argument that “The defendant in this case has got enough white man’s blood in him to make him a man of judgment and sense, and he is a smart fellow indeed, and on the other hand he has enough African in him to make him as mean as Hades itself.” This statement was objected to, but there was no response by the court.

This kind of argument by the district attorney was improper, and has been condemned by this court many times in the past. Any argument of counsel to a jury which is based upon race prejudice should not be indulged in a court of justice. Such argument is foreign to the issue involved in the case and is calculated to do great harm to the interest of the accused.

Let us say once more, the humblest human being, be he white or black, red or yellow, is entitled to a fair and impartial trial on the sole issue of guilt or innocence under the^ law and evidence of the case. The courts of justice of our country will nevér retrograde to the unfair and barbarous practice of trying the accused upon his color, creed, or caste.

The injury done the accused in this case by the improper argument of the prosecuting attorney might not appeal to us as being sufficient for a reversal if there were no other errors in the record, and we therefore pass from this question without deciding whether or not it was reversible error.

But there must be a reversal upon the ground that the court erred in refusing to grant an instruction to the defendant, which is as follows:

“The court instructs the jury for the defendant that they as jurors have no right under the law to draw any unfavorable inference against the defendant because he did not testify in this case.”

As we have said before, the conviction in this case rests upon circumstantial evidence, and the defendant did not testify in his own behalf. Under section 1918, Code of 1906 (section 1578, Hemingway’s Code), it is provided that — “The accused shall be a competent witness for himself in any prosecution for crime against him; but the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel.”

We think the court was in error in refusing to grant the instruction asked for by the defendant. The statute clearly announces his rights in the premises, that is, his failure to*testify shall not operate to his prejudice; and he was entitled to have the court instruct the jury as to this legal right.

We do not say that the refusal of the court to grant the instruction would in all cases result in a reversal, because it might appear manifestly in some cases that the refusal of the instruction resulted in no injury to the accused in his trial. But we think the error in refusing the instruction in this case is reversible for the reason that, coupled with the refusal of the instruction to the defendant, counsel for the state in his argument to the -jury used the following language, “We have never got Neal Funches to talk about this thing; he has always run away from it;” to which remarks counsel for defendant objected at the time. It is true it appears in the record that this language by the prosecuting attorney had reference to certain evidence in the case which went to show that the accused refused to talk about the killing or to say anything' with reference to it in his own neighborhood and elsewhere, and comment of counsel upon this part of the evidence was ordinarily legitimate, but peculiarly in the case before us it is quite probable that these remarks of the prosecuting attorney indirectly led the minds of the jury to the fact that the accused had failed to testify in his own behalf. This comment, though indirectly, accentuated the error of the court in refusing the instruction to the defendant telling the jury that his failure to testify should not operate to his prejudice, and, taking the comment of the prosecuting attorney coupled with the error of the court in refusing the instruction, makes the refusal of the instruction reversible error.

Reversed and remanded.