Redwine v. State , 149 Miss. 741 ( 1928 )

^* Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 72, n. 58; p. 223, n. 40; Homicide, 30CJ, p. 323, n. 67. The appellant assigns and argues two grounds for reversal of the judgment in this case. First, that the court erred in refusing appellant's instruction for a directed verdict of not guilty; and second, that the misconduct of the district attorney in the argument of the case before the jury should work a reversal of the judgment.

In determining the propriety of the action of the trial court in refusing to direct a verdict of not guilty in this case, the evidence tending to prove appellant's guilt must be considered most favorably for the state. Putting it differently, every material fact proven either directly or by reasonable inference, tending to show appellant's guilt, must be taken as true. So viewing the evidence in this case, we think the jury was justified in returning a verdict against the appellant of manslaughter. We do not think it would answer any good purpose to set out, either the evidence or the substance of the evidence, for the state and for the appellant. It is sufficient to say there was ample evidence to go to the jury tending to show that the homicide was committed in the heat of passion, without malice, by the use of a pistol, a dangerous weapon, without authority of law, and not in necessary self-defense, and, therefore, under our statute, constituted manslaughter.

The alleged misconduct of the district attorney in his argument of the case before the jury cannot be availed of by the appellant in this court, because he failed to exhaust his remedy in the trial court. The trial court sustained appellant's objection to the alleged misconduct of the district attorney in his argument before the jury, and instructed the jury not to consider that part of the district attorney's argument. If appellant conceived that his rights were prejudiced by such an argument, and that such prejudice had not been removed by the ruling of the court and the instruction of the court to the jury to disregard same, he should have moved the court for a mistrial and a new trial before another jury. Cotton v. State, 135 Miss. 792, 100 So. 383; Allen v. State (Miss.), 114 So. 352.

Affirmed.