Harwell v. State

Citations

• 129 Miss. 858
• 93 So. 366

Syllabus

<p>1. Criminal Law. Remarks of prosecuting attorney held comment on failure of defendant to testify, and erroneous.</p> <p>In a criminal ease, it is reversible error, under section 1918, Code 1906 (Hemingway’s Code, section 1578), for the prosecuting attorney to comment on the failure of an accused to testify. The argument set out in the second syllabus constituted a comment on such failure, within the meaning of the statute.</p> <p>2. Criminal Law. Remarks of counsel as to failure of defendant to testify held improper.</p> <p>In a criminal case, whore two persons are jointly indicted for crime and are jointly tried by common counsel, who after the state closes its case retire for consultation, and after such consultation return and introduce one of the defendants, but not the other, it is improper argument for the prosecuting attorney to make the following statement in argument: “Gentlemen: I can imagine what took place in that room there, when these defendants went in there with their attorneys, after the state had rested its case. This is about what occurred: The attorneys said to the defendants: ‘B6ys, the state has made out a terribly strong case against you, and it- looks like they have got you. What have you to say for yourselves?’ Then I imagine the big fellow (referring to Henry Payne, who did not take the stand in his own behalf) 'said: T know of nothing I could say to save myself, so I won’t go on’ (meaning on the stand). Then I imagine the little fellow, Harwell, said: ‘Well, I am a young man, twenty-two years old, I cannot make it no worse, so I will take a shot at it.’ ”</p>