Smith v. State , 141 Miss. 772 ( 1925 )

Cook:; J.,

delivered the opinion of the court.

The appellant was convicted in the circuit court of Leflore county, and sentenced to the penitentiary for life, and from this conviction and sentence this appeal was prosecuted.

A. L. Jackson and his wife, who were present at the time of the fatal shooting, were the principal witnesses for the state, and their testimony, if believed, warrants the verdict of the jury, while the defendant’s testimony tends to support the theory of selLdefense. At the time of the killing and for several years prior thereto, the defendant and the witnesses, Jackson and his wife, lived in the same home. For .several months prior to the killing the deceased had been engaged in logging near the home of the Jacksons, and there was testimony of threats made by him to take the life of the deceased, and of an attempt to carry into effect these threats on the day before the killing, but there is no testimony whatever as to the origin or cause of the trouble between these parties.

The only assignment of error that is seriously pressed is based upon certain language used by the county attorney in his argument before the jury, the language complained of being as follows:

“Gentlemen-of the jury, there is no use getting away from the issue; jealously caused Smith to kill Darnell. Smith had been in this house with Jackson’s wife, and enjoyed certain privileges. Darnell had come in and was taking Smith’s place in this family, and Smith was jealous, and that was the reason Smith assassinated this man, Darnell. That is the issue in this case. You can’t get away from it. Darnell was taking Smith’s place. He was aroused by jealousy, and to get rid of Darnell he waylaid him in the crib and assassinated him.”

The special bill of exceptions further recites that:

“Upon the making of said remarks by the county attorney in the prosecution of this defendant, counsel for this defendant in open court objected to the remarks aforesaid upon the ground that the testimony in the record did not justify the argument by the prosecuting attorney, which objections were by the court overruled, and defendant excepted; whereupon the said prosecuting attorney continued for a period of ten or twelve minutes to repeat in substance and in different language that jealousy, and jealousy alone, caused Smith to assassinate .Darnell, and enlarged upon the so-called motives, the substance of' which, as stated above in the quotations, were repeated time and time again over the objections of counsel for this defendant.”

This language would be understood as a direct charge of improper relations between the defendant and the witness, Mrs. A. L. Jackson, and between the deceased and Mrs. Jackson, while a search of- the record fails to disclose any testimony showing the existence of any such illicit relations, or from which such relations may be fairly inferred. The only testimony in the record as to the relations of any of these parties is the fact that the defendant lived in the home of the - Jacksons, and the testimony of the defendant himself that the deceased spent the night before the killing at the home of the Jack-sons ; that he left there early the next morning, and later returned and again went away, accompanied by both Mrs. Jackson and her husband. The destination and purpose of this trip is fully explained by the witnesses for the state. These bare facts do not warrant any in fereuce of improper conduct on the part of any of these parties, and this argument was an effort to supply a motive for an unjustifiable killing’ when none whatever appears from the record. While great' latitude must be allowed counsel in matters of argument, the argument should be confined to the testimony and the proper inferences or deductions to be drawn therefrom. The argument in this case injected an issue that finds no support in the evidence, and the telling force with which this argument was used is shown by the recitals of the bill of exceptions that, after the objections to the argument had been overruled, the prosecuting attorney continued for a period of ten or twelve minutes to repeat in substance, and in different language, that jealousy, and jealousy alone, caused the defendant to assassinate Darnell, and enlarged upon the so-called motives, the substance of which, as stated above in the quotation, was repeated time and time again over the objections of counsel for the defendant. We think this argument was prejudicial, and consequently the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.