
    Baird v. State.
    
    (Division A.
    May 23, 1927.)
    [112 So. 705.
    No. 26280.]
    1. CkemiNaa Law. Ordinarily opinion of nonexpert on insanity L ci»!,Hs-co^wtan, w&im>nifowmeEk mém?m be accompanied by statement of facts on which it is
    
    opinion oí a nonexpert witness that a person is insane ií>eisai.maníed statement of the specific facts on which it is based.
    2. Criminal Law. Nonexpert, testifying that person is sane, need not 2- ORimmMwopi9iWWrAa¥e€Mín8f%%cWSsWGÍlsane’neecl not
    
    need not ae-asasffib fee» M^h^^s eccentricities which usually mark the conduct of mind diseased.
    3. 3. Ckiminal Law. Refusal, after close of evidence, to receive expert cmmórkMf iMmñ}áHunj %mámeh^drmiv&ms%1t ^nsan'íi:y time of homicide, held not abuse of
    
    In^WoiliiKiion for murder, refusal after close of evidence, but sfflffift8áa r$uf&y,a%rp§&Sft fefg5í&mc%o W-Msfi§eWe?MtsmiiMitV), tefea&Pthte fe-Mfeift ItoiM^d/ifeffeeí¿fiaiyM te Sgfíí¥áyaw® • Mlíamu°tod]mimM t^MfELS*! á*1?0* e^tecS1® ffifas^J8rtM¥fti^,Wa6í fflife$i%i$iy?art of evidence in chief was that witiiess was hot then -present.
    Ceiminal Law. Reopening case for introduction of further testi-^w^sHmreMm^rsnffWi^un^vm^dmñTuWé ™™„. an$ win not 6e interfered with, imless
    
    mony rests ordinarily in the sound discretion of the trial court, and its ruling thereon will not be interfered with, unless disclosing manifest abuse of discretion,
    5. Criminal Law. Counsel's statement that cold-blooded murcber was done and was undisputed held not “comment on failure of defendant to testify” ^Hemingway’s Code, section 1578).
    Statement of counsel, addressing jury for the state in murder prosecution, to effect that cold-blooded murder had been done and was undisputed, held) not in violation of Hemingway’s Code, section 1578 (Code 1906, section 1918), as constituting a “comment on failure of defendant to testify.”
    6. Criminal Law. Counsel’s statement that cold-blooded murder was done and was undisputed) held harmless, under circumstances, if comment on defendant's failure to testify (Hemingway's Code, section 1578).
    Statement of counsel, in addressing jury for the state in murder prosecution, that cold-blooded murder had been done and was undisputed, if in violation of Hemingway’s Code, section 1578 (Code 1906, section 1918), as a comment on failure of defendant to testify, held harmless, where homicide was undisputed and was cold-blooded, unless defendant was insane at time he committed it.
    Appeal from circuit court of Chickasaw county.
    HoN. T. E. Pegeam, Judge.
    Brenda Lee Baird was convicted of murder, and he appeals.
    Affirmed.
    
      Bratton & Mitchell and T. L. llaman, for appellant.
    I. Appellant moved to set aside the verdict of the jury and grant him a new trial, “ because Hon. B. N. Knox, associate counsel for the state in his opening argument referred to the fact that the defendant had failed to take the stand in his own behalf. ’ ’ The remark made by Mr. Knox was in this language: “Gentlemen of the jury, I call your attention to the fact that the testimony for the state shows that in this case a cold-blooded murder has been done and it is undisputed.” This remark •comes squarely and fairly under the condemnation of section 1578, Hemingway’s Code. See, also, Yarbrough v. State, 70 Miss. 593, 12 So: 551; Reddick v. State, 72 Miss. 1008, 16 So. 490:
    II. The court erred in admitting the testimony of certain witnesses who simply expressed an opinion to the effect that the defendant was sane at the time of the homicide and sane at the time of the trial, without being qualified by the court under the rules of evidence. Provident Life Ins. Co. v. Mrs. Emma McWilliams, 107 Miss. 527.
    
      J. A. Lauderdale, Assistant Attorney-General, for the state.
    I. The argument of coumsel for the state. In order for the argument of an attorney for the state to work a reversal of the case, it must appear (1) that a reasonable construction of the argument is a comment upon the failure of the defendant to testify; (2) that the comment was prejudicial to the rights of the defendant. A reasonable construction of the language here is not a comment upon the failure of the defendant to testify. Johnson v. State, 109 Miss. 622; D'rane v; State, 92 Miss. 180.
    Even though the court should hold that this argument was a comment upon the failure of the defendant • to testify, it was not prejudicial to the rights of the defendant. The only defense interposed by the defendant was that of insanity. Rouse v. State, 97 So. A-,'Wells v. State, 96 Miss. 500.
    II. The district attorney attempted to prove what the defendant did and said at the time he was arrested and after he was put in jail in an attempt to show that he was sane. The attorney for the defendant objected to a oP g© ©tíSSp S3Ü g c cSdS*? S6- •'* • g g® ©eíjWh gppgpétgfo «^S.
    
      
      Corpus Juris-Cyc References: Criminal Law 16CJ, p. 751, n. 99; p. 752, n. 2, 4; p. 870, n. 65 New; p. 872, n. 76; p. 903, n. 58; 17CJ, p. 244, n. 67; p. 301, n. 54; Evidence, 22CJ, p. 607, n. 28; p. 608 n. 30.
    
   ■SMITH, CL X, Smith, C. 3.,

di a elivered the .opinion of elivered the opinion of ae court, e court.

his is an appeal from a conviction of murder; ms ,is an. appeal from a coiwiction or murder4 ant ;s defense m me court pelow being ínsanit ». ant’s ctefense in ,the,court below* being’ insanity,

as sanity con-fie evidence as*to the .sanity of the appellant con-jcf principady of me testimony o:; nonexpert witnesses id praiicipa: ly or the testimony p: nonexpert witnesses ir-whoseiobservation me appelant Iraq come, >sever .whose observation the ,appellaiit ha,d come., Sev-witnesses, who ,iad ample1 opportunity tor ohserv-,witnesses;.who,nad ample opportunity tor observing me conduét of tie appellant/were permitted, over iig the cpncLuct of. me appellant, were -permitted;-over it appellant ,s omection/ to state that ill their opinion appellant’s objection, .to - *- Maní _ „„ pellanu lection to objection ion accompanied accompanied it was1 pased-it-.was i witness witness that a py a statement was Sane at r_ state ;pe time o: it in their-.opimon _ _ ,._ ;.ie homicide, tche was sane at the time oh the homicide. The us testimony was mat this opinion was not Wi ly.was.tnat thi-s. opinion was eiit of tie specific facts on wluc, or the specific facts on wlucf me opim - - ins testimgm — a statemel, S t £i "t G 1TG rdinarify, tHe”opiíIfoiT"of'"á”hóñexpert Jrdinamy, the opinion or a nonexpert a person is uhsane should le accompamec nson is ípsape ghoulq^- le 1acgo-mpanie ;iie specif tacts on msec ,. ^oco-mpa .. _x .ucli if isdm — fife hi statement, of the spocihc, facts, on which it is based, yviBut if me witness testifies that the person is sane, no íí if + h A TmfnrtOC. f AC+lflAr. thot r h A 1AAVC.A11 lev COTIA' HA j-«it it the .witness testihes that tlie Person, is sane,,no such necessity exists, for m mat case le subject of’the such necessity exists, form mat, case the*sumeet of-,tiie testimony pas given’no manifestations of eccentricities testimony has given no manifestations of -eceentricitias whicp usually mart the conduct of £p.e mmg dp.seasec|, wpicp us which usuf ~,nd only t íe conduct marh tlie* conduct __ absence of such manifestations conto and oiuVotie ." 3 Joes on evidence (2d Ed.) 2337; 22 C. J. 607 .

Aftdr me close o submitted to tlie jury," counse. íe evidence, m evidence, ~. BlF1wase re^ise^ ^rmission .jut ., ,or at was Tore the case was eifanf requested, iellant requested, ice ail expert on but was refused; Permission-to iiitro,üucq -an expert .on msamfy, who woWclpave testified mat m pis opimon me msamfyhwho would nave testified that m,his-qfkniopnthe appeiram was insane at the time of me homic±de- rWBls appellant was, insane at the-timen of me homicide. *l,his evidence should pave peen introduced as a part of me evidence should have been introduced as a part of the comiso! for af - m intro1 ^ssgg OffiSteii-h, ©©©©O© tátetái-ji-á yy?®5B ssh ñg, . Jy^gf c-hris>CPCPCP ^og §§gg^ tri^ Mtrj MGO- „g g i-¿i-íc_ _ ®^8° ®® © l“&-J Hte teS5 P

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