Hathaway v. State , 195 Miss. 311 ( 1943 )

The direction by the judge to counsel to stay within the record could have meant nothing less than that he had gone beyond the record. In Wells v. State, 162 Miss. 617, at page 625,139 So. 859, at page 861, quoting from opinion, "When an objection was interposed to this statement of the district attorney, the court said, `I do not think that is proper argument,' but did not warn the jury to disregard this statement and argument, and the appellant's counsel made no request that the court do so or take any further action in the matter." The court held that the alleged improper argument could not be taken advantage of on appeal. In Cotton v. State, 135 Miss. 792, 100 So. 383, objection was made by defendant's attorney to language used by the district attorney in his argument. The court instructed the jury to disregard the same. On appeal, this court held the defendant could not take advantage of the occurrence unless at the time he made a motion for a new trial. To the same effect is Allen v. State, 148 Miss. 229, 114 So. 352, and Redwine v. State, 149 Miss. 741, 115 So. 889. Brush v. Laurendine, 168 Miss. 7, 150 So. 818, does not expressly overrule those cases, and, in my opinion, they are not in substantial conflict.