{
  "id": 8553768,
  "name": "STATE OF NORTH CAROLINA v. MACK EDWARD JONES",
  "name_abbreviation": "State v. Jones",
  "decision_date": "1973-09-12",
  "docket_number": "No. 7319SC576",
  "first_page": "395",
  "last_page": "396",
  "citations": [
    {
      "type": "official",
      "cite": "19 N.C. App. 395"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "69 S.E. 2d 537",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "235 N.C. 251",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8622833
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/235/0251-01"
      ]
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    {
      "cite": "157 S.E. 2d 335",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "271 N.C. 646",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8566320
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/271/0646-01"
      ]
    }
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  "analysis": {
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  "last_updated": "2023-07-14T21:32:34.966448+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Campbell and Baley concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MACK EDWARD JONES"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nDefendant\u2019s assignments of error based on the failure of the court to grant his motions for nonsuit are without merit. The evidence was sufficient to go to the jury on the charge of murder in the second degree and fully supports the jury\u2019s verdict of guilty on that charge.\nDefendant did not testify. The only witness for the defense was Frank Edward Jones, one of several children of defendant and deceased who were present in the home on the night of the homicide.\nOne of the privately employed attorneys for the prosecution made the following argument to the jury:\n\u201cMack Jones is guilty, and if he was not guilty he would have taken the stand to deny it; instead he put his twelve-year-old son on the stand to lie for him.\u201d\nDefense counsel\u2019s objection, was sustained. The court then instructed the jury as follows:\n\u201cThe Statute provides that the defendant has a right to choose whether or not he goes upon the stand and the fact that he does not go upon the stand shall not be considered by you against him.\u201d\nThe impropriety of the quoted argument by the prosecution is so elementary that it does not require discussion. It is error to comment on the failure of a defendant to testify. Here the argument not only violates this familiar rule, but it also contains the statement that if defendant were not guilty he would have taken the stand to deny guilt! This argument was obviously calculated to mislead the jury into the belief that they should consider defendant\u2019s silence at trial as a circumstance indicating. guilt. Moreover, the statement \u201c. . . he (defendant) put his twelve-year-old son on the stand to lie for him\u201d was as offensive to the administration of justice in this case as was the first part of the argument. See State v. Miller, 271 N.C. 646, 157 S.E. 2d 335. Although the judge, after objection, gave the quoted instruction we cannot hold that it was sufficient to cure the prejudicial effect of the argument and render it harmless, especially since the court did not instruct the jury that the argument they had just heard was improper and that it should be disregarded. State v. McLamb, 235 N.C. 251, 69 S.E. 2d 537.\nThere must be a new trial because of the improper argument of the privately employed attorney for the prosecution.\nNew trial.\nJudges Campbell and Baley concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Norman L. Sloan, Associate Attorney, for the State.",
      ".Clarence E. Horton, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MACK EDWARD JONES\nNo. 7319SC576\n(Filed 12 September 1973)\nCriminal Law \u00a7 102 \u2014 reference to failure of defendant to take stand in jury argument \u2014 error\nWhere the prosecution in its argument to the jury stated, \u201cMack Jones is guilty, and if he was not guilty he would have taken the stand to deny it; instead he put his twelve-year-old son on the stand to lie for him,\u201d defendant is entitled to a new trial since the trial judge\u2019s subsequent instruction with respect to defendant\u2019s failure to take the stand was insufficient to cure the prejudicial effect of the argument.\nOn certiorari to review trial before McConnell, Judge, August 1972 Session of Superior Court held in Cabarrus County.\nDefendant was convicted of murder in the second degree. Defendant\u2019s wife was the victim of the homicide which occurred in the residence of defendant, his wife and children. Judgment was entered imposing a prison sentence of not less than twenty-five nor more than thirty years. We allowed defendant\u2019s petition for certiorari.\nAttorney General Robert Morgan by Norman L. Sloan, Associate Attorney, for the State.\n.Clarence E. Horton, Jr., for defendant appellant."
  },
  "file_name": "0395-01",
  "first_page_order": 419,
  "last_page_order": 420
}