State v. Durden , 264 S.C. 86 ( 1975 )

Bussey, Justice

(concurring) :

I concur in the opinion of Mr. Justice Littlejohn, but deem further comment appropriate as to question number three. There is abundant persuasive authority from other jurisdictions indicating that the latitude allowed a prosecutor in arguing before a jury is not nearly so broad as indicated by the text in 23A C. J. S. Criminal Law § 1107, quoted in the opinion of Mr. Justice Littlejohn, and there are numerous decisions holding arguments similar to that allegedly made by the prosecutor in this case to be improper. See for instance, Emerson v. State, 90 Ga. App. 323, 82 S. E. (2d) 882 and State v. Phifer, 197 N. C. 729, 150 S. E. 353.

Whether or not an argument is prejudicially erroneous depends in large measure upon the precise language used by the prosecutor and the context in which the utterances are made. We have the benefit of neither in the present case, nor of the trial transcript, and I am not convinced of any prejudicial error. On the other hand, I do not think this Court should go on record as approving the propriety of the argument allegedly made, such to my mind being prima facie improper.

It is not amiss, I think, to call attention to the pertinent provisions of the American Bar Association Project on Standards for Criminal Justice relating to the argument of the prosecutor to the jury. Such appear to be supported by the better reasoned decisions from other jurisdictions. I quote the following from page 126 of the “Approved Draft, 1971.”

“5.8 Argument to the jury.

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(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.”