DocketNumber: 2680
Judges: Sanders
Filed Date: 6/17/1925
Status: Precedential
Modified Date: 10/19/2024
Statements of district attorney in opening address were uncalled for, did not throw light on crime charged, were unsupported by evidence, and constitute reversible error. State v. Scott,
Character cannot be shown by specific acts, but only by reputation in community in which one lives, nor can one's character for peace and quiet be attacked until he offers evidence of his good character. State v. Sella,
It is prosecutor's duty to be unprejudiced, impartial, to be bent only on seeing justice done and law vindicated. Mere objection of counsel and admonition by court may not be sufficient to remove prejudice caused by unwarranted remarks of prosecutor. State v. Rodriguez,
Antecedent and subsequent acts of person accused of crime are admissible only for purpose of throwing light on crime, or motive of defendant in crime for which he is being tried, 30 C.J. 195.
Prosecutor accused defendant of being vicious, intoxicated, having killing propensities. Evidence did not support statement. It was prejudicial error. Williams v. State,
Prosecutor's opening address is statement of what he *Page 77 expects to prove. If made in good faith it cannot constitute error. Anyway, jury is sworn to try case on evidence adduced.
The appellant, herein referred to as the defendant, seeks reversal of the judgment upon the ground of the alleged misconduct of the assistant district attorney in making the opening statement of the facts the state expected to prove, claiming that said attorney was permitted, over the defendant's objection, to state facts which he could not, or would not, be permitted to prove upon the trial. The statement complained of was, in effect, that the defendant, shortly before shooting the prosecuting witness, was intoxicated and in a reckless or vicious humor, desired trouble, and was armed. The proof on the part of the state did not measure up to the statement made by its attorney.
1-3. It is permissible under our Criminal Practice Act (Rev. Laws, secs. 6851-7529), after the reading of the indictment or information by the clerk to the jury and stating the defendant's plea, for both the district attorney and the defendant or his attorney to outline the testimony to be offered, to the end that the jury may more clearly sift and digest the evidence. People v. Weber,
4. The experienced attorney for the defendant concedes in argument that, where the defendant is accused of an assault with intent to kill, evidence of the conduct of the defendant shortly before the shooting, indicating that the defendant was in a reckless or vicious humor and desired trouble, is admissible upon the question of intent, but contends that where, as in this case, there is no evidence to support the statement, which could only have been made for the purpose of inflaming the minds of the jurors against the defendant, such a statement constitutes reversible error. We find nothing in the record to indicate either an intentional disregard of truth, or an intent on the part of the assistant district attorney to influence the jury by a false statement of the facts he expected to prove. The verdict itself furnishes a sufficient answer to the argument that the jurors were influenced against the defendant by the statement made by the assistant district attorney in opening the cause for the state.
There is nothing in the case of State v. Fronhofer,
5. It is contended that the trial court erred in permitting a witness for the state to testify to the effect that, within a couple of hours before the defendant committed the act of firing the shot into the body of the complaining witness, he was seen in the Tip saloon handling and pointing a revolver. We do not understand, in view of the verdict, how the defendant can justly claim that the testimony was prejudicial. The jury found that the defendant was guilty of an assault with a deadly weapon, with intent to inflict upon the person of another a bodily injury, where no considerable provocation appeared.
6. It is argued that, unless the jury were influenced by the statements of the assistant district attorney, and the testimony pertaining to the defendant's conduct prior to the shooting, there would have been no cause for the jury to find the defendant guilty of a much less crime than that charged in the information. Certainly the defendant is in no position to complain of statements or testimony which reacted in his favor.
The judgment is affirmed. *Page 80