McPhearson v. State

Dissenting Opinion

Jackson, J.

I am unable to concur in the majority opinion and dissent thereto. The reasons for such dissent are as follows:

1. In my opinion the appellant was not fully advised as to his constitutional rights.

2. The admission in evidence of State’s Exhibit No. 4, over objection of the defendant, constitutes reversible error, particularly so as the trial court stated “There is no evidence putting this particular gun in the hands of either the defendant or his accomplice.” Therefore, the admission in evidence of the exhibit could only be for the purpose of unlawfully prejudicing the jury against the defendant.

3. The language of the court, set out at paragraph 2 above, operated to deprive the defendant-appellant of a fair trial, was prejudicial to the defendant and invaded the province of the jury in that thereby, prior to the verdict of the jury, the court indicated to the jury his belief in the guilt of the defendant, i.e., if the defendant was not guilty of any crime there could be no accomplice.

For the reasons above stated the judgment herein should be reversed and the cause remanded to the trial court with instructions to grant appellant’s Motion for a New Trial.