Martin v. State , 200 Miss. 142 ( 1946 )

DISSENTING OPINION. The judgment of the court below should not be reversed, because the prosecuting attorney, in his argument, calls the attention of the jury to the fact that the evidence was undisputed "that Martin told the Chandlers that he and Shortridge and another had bought the property in question for $4000 when in truth and in fact he had paid only $1200 for it" for two reasons: (1) It is manifest from the evidence that the appellant is guilty of the crime charged against him, and (2) this comment should not be held to refer to the appellant's failure to testify in his own behalf. The prosecuting attorney had the right to call the jury's attention to the fact that the evidence of none of the witnesses who testified in the case disclosed any dispute as to what Martin told the Chandlers — in fact, he could hardly have argued the case intelligently and effectively without so doing. This decision, together with that of Lambert v. State, 199 Miss. 790,25 So.2d 477, makes it "almost impossible for a prosecuting attorney to safely argue a criminal case to the jury when the defendant therein fails to testify."

Alexander, J., concurs in the foregoing dissent upon the first ground mentioned therein.