Gurley v. State

Citations

• 101 Miss. 190
• 57 So. 565

Syllabus

<p>1. Homicide. Dying declarations. Admissibility. Improper argument of counsel. Instructions.</p> <p>The competency of dying declarations is exclusively for the consideration of the court.'</p> <p>2. Same.</p> <p>Where a dying declaration is admitted in evidence by the court, it then becomes the province of the jury to decide upon its credibility, and the jury in doing so may take into consideration all the circumstances under which the declarations were made, ineluding those already proved to the court and may give to the evidence only such credit or force as, upon the whole they think it deserves.</p> <p>3. Instructions.</p> <p>The courts should not single out particular portions of the evidence in a cause, and tell the jury by instructions, that it ought or might consider this, that, or another part of the evidence, in connection, with the other evidence in reaching a verdict.</p> <p>4. Aepeal. Record. Conclusiveness.</p> <p>The supreme court on appeal, must accept as true the statement of the trial court of its recollection of the proceedings sought to be reviewed.</p> <p>5. Code oe 1906, Section 1918. Comment on failure of defendant to-testify.</p> <p>Under the Code of 1906, section 1918 forbidding counsel to comment on the failure of defendant to testify, the word “comment” a» employed in the statute, does not mean to criticise or condemn, or anathematize the accused on his failure to testify. It forbids any comment friendly or unfriendly. It forbids any remark of any character, in any words upon the failure of the accused to testify. The attention of the jury is not to be called to the fact at all by counsel.</p> <p>6. Same.</p> <p>Where counsel does comment, on the failure of the accused tO' ■ testify, the fact that the court tells the jury not to consider such comment will not- save tbe case on appeal from being, reversed.</p>