De Jean v. State

Peed, J., delivered the opinion of the court. Appellants were tried and convicted upon the charge of unlawful cohabitation. There is evidence to support the verdict of the jury. • The offense was proved by circumstances. We reverse this case because the district attorney in his closing argument commented upon the failure of appellant, De Jean, to offer evidence of his previous character. Objections were made to the language used, and the objections were overruled. We quote from the special bill of exceptions as follows: “Gentlemen of the jury, the defendant here says that he has been a business man over in Pascagoula for twen [148] ty-five years. Yes, his attorneys say that the defendant has lived in Pascagoula for twenty-five or thirty years, and has evidently been a successful man, has raised a family there, and this is the first time he has been indicted for crime, never has been convicted of any crime. Yet he has not brought a single witness from.over there among all those people who have known him for twenty-five or thirty years to testify about his character. ’ ’ “The defendant says he has a son thirty-five years old living in Pascagoula. This son has not been present at this trial, and is it not a strange thing that this son did not come over and testify on behalf of the defendant?” The prosecuting attorney should not have commented as he did in his argument to the jury upon appellant, De Jean’s failure to introduce testimony of his previous character. His character had not been put in evidence. This comment by the district attorney in his argument is prejudicial error in this case where the proof is by circumstantial evidence and defendant’s character is an element of importance in the question of his guilt. Turner v. State, 94 Miss. 458, 48 So. 409, 19 Ann. Cas. 407. Appellants contend that there was error in the propounding of the questions to appellant, De Jean, by the district attorney, which are set out in the fifth paragraph of the assignment of errors. It was improper to ask these questions, and we think that the court should have sustained objections to all of them. However, we do not say that we would have reversed this case upon the error alone contained in this interrogation of defendant. Reversed and remanded.