* Headnotes 1. Criminal Law, 16 C.J., Section 2109; 2 Criminal Law, 16 C.J., Section 2105. ON SUGGESTION OF ERROR. With some doubt and hesitation on the part of this court the judgment in this case was affirmed at a former day of the present term. Upon a reconsideration of the case, on suggestion of error, we are now convinced that the judgment should have been reversed instead of affirmed.
The appellant was convicted in the circuit court of Adams county of the crime of the unlawful sale of intoxicating liquors, fined one hundred dollars, and sentenced to ninety days' imprisonment, from which judgment he prosecutes this appeal.
We find no merit in any of the errors assigned by appellant except the one based on the action of the trial court in ordering the sheriff, in the presence of the jury before whom appellant was being tried, to arrest one of appellant's witnesses as he was leaving the witness stand and hold him to await the action of the grand jury. The last witness was a material witness in appellant's behalf. At the conclusion of the testimony of this witness, after he had been excused and was retiring from the witness stand, the trial court used this language: "Mr. Sheriff, take charge of this man and hold him under bond to await the action of the next grand jury." This action of the court was objected to by appellant on the *Page 54 ground that it had taken place in the presence of the jury and was calculated to prejudice appellant's rights. Appellant asked that the jury be discharged and "a mistrial be entered." The trial judge overruled appellant's objection and request, and stated that he did not consider that his action in ordering the witness to be held to await the action of the grand jury was prejudicial to appellant's rights, because he had not stated in the presence of the jury the ground upon which he ordered the witness held.
As we view it now, it appears that no other construction could have reasonably been put upon the language of the trial judge objected to by appellant than that the judge was convinced that the witness Buchanan, in his testimony in behalf of appellant, had perjured himself. The jury must have thought, and had a good reason to think, that the witness had committed a crime of some character in the presence of the court and jury; otherwise that his arrest would not have been then and there ordered. The jury must be given credit for having good common sense and judgment. We can hardly conceive of how a witness could be more thoroughly discredited than by the action of the trial judge in ordering his arrest as he is leaving the witness stand, whether his arrest be upon the ground that he had committed perjury on the witness stand or has been guilty of some crime elsewhere.
In Fuller v. State, 85 Miss. 199, 37 So. 749, the court said, in the presence of the jury, in denying the defendant a continuance, that there had been much complaint about the failure of the courts to convict "these criminals," and the court feared that it was largely due to continuances. This was held to be prejudicial error. The trial judge cannot be too careful and guarded in his language and conduct in the presence of the jury. The trial judges have, and deserve to have, great influence with the juries. Juries are on the lookout for their leaning one way or the other. Under the principles announced *Page 55 in the case above referred to, as well as Green v. State,97 Miss. 834, 53 So. 415; Collins v. State, 99 Miss. 47, 54 So. 665, Ann. Cas. 1913C, 1256, and Leverett v. State, 112 Miss. 394, 73 So. 273, we are of opinion that the action of the court complained of was prejudicial to appellant's rights.
Furthermore, under section 793, Code of 1906 (577 Hemingway's Code), circuit judges, in both civil and criminal cases, are prohibited from summing up or commenting on the testimony of the witnesses. When the trial judge charges a witness in the presence of the jury before whom the witness has testified of having committed perjury in the giving of his testimony, we think he violates that provision of the statute. Such conduct of the judge can mean nothing else than adverse comment on the testimony of the witness.
Suggestion of error sustained; and reversed and remanded. Per curiam affirmed.