Crook v. State

160 So. 2d 884, 42 Ala. App. 270, 1963 Ala. App. LEXIS 211

• Court: Alabama Court of Appeals
• Decided: October 15, 1963
• Docket: 8 Div. 785
• Status: Published

Opinions

CATES, Judge.

Carlton Crook killed his wife by shooting into his dwelling house through the front door, the bullet going through the living room and hitting Mrs. Crook who was then standing in the kitchen ironing some clothes.

From a judgment of guilt of second degree murder, he appeals.

The defense tried in the course of the trial to show that the Crooks had the weekend habit of drinking and playfully taking pot shots close to each other. One question sought to elicit that once in the living room she had taken a .22 rifle and had traced her husband’s outline by shooting around him as he was standing against the wall.

The trial judge ruled this line of questioning out, apparently because it was not of the res gestae.

However, it was brought out that on the fatal occasion Mrs. Crook had been outdoors and had wrenched a gas operated pellet gun from her husband’s hand. The gun went off and put a .22 pellet in his palm in the thick area below the thumb.

Mrs. Crook attempted later (just before she was killed) to take a .22 rifle from their car. The evidence is in conflict as to whether she walked slowly back in the house or whether she ran in with her husband chasing her by firing the rifle into the ground around her feet. Undisputedly he shot at the ground near her feet three or four times.

In the State’s closing argument, we find the following:

“ * * * Following Mr. Brewer’s argument, Mr. Johnson made the closing argument for the State. Mr. Brewer interposed an objection to the following statement in Mr. Johnson’s argument:

“ ‘You put a reasonable construction on it. You don’t listen to some new fangled, disgusting theory that springs out from the minds of the imaginative lawyers.’

“Mr. Brewer: We object to the statement: You wont be swayed by this new fangled, disgusting theory that sprang from the agile minds of the lawyers.’

“Mr. Johnson: It was ‘imaginative minds.’

“The Court: Gentlemen of the jury, each of the lawyers has the right to place their own construction on the matters before you, so long as they stay within reasonable bounds. I wont construe it such as to sustain the obj ection. You place your own construction on the matters before you. The Court will tell you what the law is, and you decide the case according to the law and evidence as you have heard it from the witness stand.

“Mr. Brewer: We except.

“Mr. Johnson: Let’s see what inferences- or interpretations would be if you subscribe to this defense, within a common sense interpretation. First, human life wouldn’t be worth much, would it?, — mine, yours or anybody else. First, you could drink yourself into a mind to kill. How could you escape that? You could finally drink yourself into a license to kill. They say they drank so much, it was a way of life. ‘We don’t plead self defense; we don’t plead insanity or justification,’ but just want you to say in this new concept that they just drank themselves into a right to kill. You don’t want that in Morgan County, do you?, and I don’t, as your prosecuting attorney, and you wouldn’t like me if I did. You know, this God-given life is too hallowed and holy. You look back over five thousand years ago, and see the omnipotent hand of God, as He put it on the tablet of Moses on Mt. Sinai, and what did He say? “Thou shall not kill!’ He didn’t say, ‘You can get drunk every day, and you have the right to kill’, and He is actually the Judge of this case we are trying. It’s a Divine law. We aren’t supposed to tamper around with any kind of disgusting new fangled theory.

“Mr'. Brewer: We object to the statement: ‘We aren’t supposed to tamper around with any kind of disgusting new theory’.

“The Court: Gentlemen, the same matters I called to your attention on the last objection apply equally, and I’ll overrule the objection.

“Mr. Brewer: We except.”

We consider the trial judge erred in not sustaining the objections. The solicitor’s counter argument was not directed to the irrationality or inconsistency of the defense argument. Rather it partook of the fallacy of the “argumentum ad hominem” condemned by logicians as appealing to the passions and prejudices of the hearers as distinguished from “ad rem,” an argument directed to the matter at hand.

Here the expression “ad hominem” has another meaning since the argument is directed to the person of Crook’s counsel.

The symbolic identification of the accused in the personality of his champion is one of the significant drawbacks of the adversary system of our common law. To make the system work fairly, a contestant should have to defend but one cause — the issue against his principal. For a lawyer to have to prove his heart is pure as well as his client’s is to make him fight a two front war.

In Taylor v. State, 22 Ala.App. 428, 116 So. 415, 416, we find:

“In the closing argument the solicitor stated:

* * * * * *

“ ‘They [defense counsel] are laying like vultures to take this case to the Supreme Court.’ ”

The opinion commented:

“This remark was undignified, highly improper, and had no place upon the trial of this case. It was contumely in all that the word implies and tended to place counsel for defendant in an improper light and disrepute before the jury; this, in the absence of any improper or illegal conduct upon the part of defendant’s counsel, who, as shown by the record, were ably and earnestly undertaking to defend their client and to protect him in his legal rights, in accordance with the solemn oath which every attorney at law is required to take before he shall be permitted to practice in this state.”

Another argument deriding defense counsel was the cause of reversal in Burch v. State, 32 Ala.App. 529, 29 So.2d 422, 423. There Bricken, P. J., said:

“ * * * the solicitor in addressing the jury * * * stated: ‘Counsel for the defendant are trying to make monkeys out of this jury, and they are laughing up their sleeves at you.’

“It clearly appears that the above quoted statement by the solicitor was wholly unwarranted as not being based upon any fact, incident, or testimony, in the case. Its effect necessarily was harmful and prejudicial. The statement cast opprobrium upon the three reputable members of the bar who were, as the law requires, defending their client to the best of their ability, and in an orderly manner, and tended to place them and their client in a very unfavorable light before the jury. This of itself would necessitate a reversal of the judgment of conviction.

“The office of' solicitor is of the highest importance; he is the representative of the state, and as a result of the important functions devolving upon him as such officer necessarily holds and wields great power and influence, and as a consequence erroneous insistences and prejudicial conduct upon his part tend to unduly prejudice and bias the jury against the defendant.

“Certainly, when the trial court, by its action in overruling the objection interposed, the court manifested its approval of the uttered words and gave its full endorsement thereof as being true. The statement, whether so intended or not, was insulting and otherwise objectionable and the court erred to a reversal in not taking prompt and decisive action to eradicate the statement instead of adding his approval thereof to the effect that such statement in the opinion of the court was true.

“In questions of this character the rule is, not that it did so affect the verdict of the jury, but might it have done so.”

Reversed and remanded.