The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-06-09
SUPREME COURT CASES.
Reported for The Clarion BY W. r. Harper
Atforney-at-Lsw, Jseksoa. Miss.
April rerm-Isse.
JNo. B. MARLIN,
VS.

JNo. B. MARLIN,
VS..
The STATE.
Appeal from the Circuit Court of Yazoo
county. Hon. I. ]. Wharton, Judge
Jno. B. Martin was indicted for an at
tempt to murder one A ii. Heath, by
administering or causing to be adj
ministered to him, dose of strychnine.
The evidence was purely circumstantial.
Martin was engaged in the butcher bus
mess in Yazoo City. No evidence vas
offered as to the character of the pris-
oner. On the trial, the assistant prose
cutting attorney, in the course of argu-
ment, said, Martin is a nan of bad,
dangerous and desperate character.
But, am not afraid to denounce the
butcher boy, although Imay, on return
ing to my home, find it in ashes over
the heads of my defenceless wife and
children. The presiding Judge did not
interfere to stop counsel. The court be-
low was asked but refused to grant a
new trial because the court erred in
aot interrupting counsel for the State,
when stating as facts, things not in evil
dence, and against the evidence" The
defendant appealed.
ARNOLD, J. delivered the opinion of the
Court.
Held-That rs the evidence was en-
| tirely circumstantial, the slightest infiu-
ence may have been deemed sufficient to
turn the scale of impartial judgment.
The assertion of counsel was an assump-
ton or declaration OF facts as to the
character of the prisoner, made by coun-
sci, without being sworn or examined
| as witness, and of . nature well calcu-
lated to influence the jury against the
prisoner. If evidence had been offered
| by the prosecution TO prove that his
character was such as that attributed to
him by counsel, it would, upon the plain
est principles of law, have been rejected
as incompetent. The prisoner was on
trial for specific offence, and it was his
right under the law to be tried for that
offence, upon competent evidence, con
fined to that issue
We are of opinion that counsel passed
the bounds of legitimate advocacy, and
| that under the circumstances of the
case, the prisoner may have been, and
probably was, thereby injured. Such
declarations uttered by distinguished
counsel of high position and socia
standing would inevitably tend tt
prejudice the jury against the pris
oner
Much latitude is accorded to the dis
cussion of counsel, in performing the
Important duties which they owe to eli
ents, and to public justice. Within th'
limits of the testimony, the argument o
counsel is, and should be free, but tina
freedom does not extend either to tn,
statement or the assumption of facts, O
to the commenting upon facts not in ev
idence, to the prejudice of the alvers
party. Being counsel and witness in tn
same cause, is not prohibited by law, i
counsel choose TO testify, but such
union of officers is permissible and toll
cradle only when counsel is sworn an,
examined like other witnesses.
1t is the duty of the presiding Judge
as said in Perkins VS.. Guy, SO Miss, 153
to interfere of his own motion to proven
breach of the privilege of counsel, an,
if he fail to do so, and the abuse O
privilege is of such character as TO pro
duce the conviction, and that iniustic,
resulted therefrom, it is the duty of tn
court to apply the correction by award
ing new trial. Reversed.
Williams & Williams, and Hudson
Hudson & Holt, for the appellant.
T. NJ Miller, she Attorney General
for the State.