Moulton v. State

74 So. 454, 199 Ala. 411, 1917 Ala. LEXIS 193

• Court: Supreme Court of Alabama
• Decided: February 15, 1917
• Status: Published

Opinions

PER CURIAM.

The brief for defendant, appellant, complains of other things that occurred during the trial, but only two exceptions were reserved, and upon these the fate of the appeal must depend.

1. Defendant was tried on June 13, 1916, for the murder of a white man whom he had killed on the first day of the same month. The assistant solicitor, in the course of his opening argument for the prosecution, said to the jury:

“If you do not hang this negro, you will have a similar crime in this county in six months.”

Defendant’s objection was overruled, whereupon, after duly excepting, he moved the court to instruct the jury to disregard the said remark; but the court overruled the motion, whereupon the defendant again duly and legally excepted. The assistant solicitor, in his argument to the jury, made also the following statement:

“Unless you hang this negro, our white people living out in the country won’t be safe; to let such crimes go unpunished will cause riots in our land.”

Defendant objected to this remark, and the court sustained the objection. The bill of exceptions then makes the following recital:

“During the closing argument of special counsel representing the state, said counsel made the following statement to the jury in reply to certain remarks made by defendant’s counsel in his address to the jury: “I hope to God the day will never come in this country when the heel of the Ethiopian will be on the neck of the Caucasian.’ Arid further said that ‘the defendant should not be convicted unless the jury was convinced to a moral certainty that the defendant was guilty.’ ”

It does not appear that defendant’s counsel or the court took any notice of the remarks shown by the excerpt from the bill of exceptions stated last above. In his general oral charge to the jury the trial judge said to them: “In the first place I charge you that the arguments of counsel are not evidence in this case, and should be considered by you merely as explaining the evidence so as to enable you to reach a fair and impartial verdict. I, therefore, exclude from your consideration the several remarks made by the solicitor for the state in reference to the white and black races, as I do not think they will help you in the consideration of the evidence, although they are not of such a character as would tend to inflame or arouse the passions of any ordinarily intelligent person.”

(1, 2) Dissociated from other peculiar features of the trial which, to use the language of the decision in Birmingham, Railway v. Gonzalez, 183 Ala. 273, 287, 61 South. 80, 84 (Ann. Cas. 1916A, 543), created “the general atmosphere of the case,” the court would not be inclined to attach importance to that remark of the assistant solicitor as to which the trial court’s ruling necessitated an exception by the defendant. In a different atmosphere the reference to defendant as a negro and the statement that, unless the defendant should be hanged, the county would have a similar crime in six months might be permitted to pass as belonging to that class of hasty or ’ exaggerated statements of opinion, not facts, counsel often make in the heat of debate, which do not, and are not expected to become, factors in the formulation of the verdict, and which, while improper, are usually valued at their true worth.—Cross v. State, 68 Ala. 484. But, looking to the whole record as it stood at the time when this exception was reserved, considering that in the evidence, even in that introduced by the prosecution, there was a strong tendency toward the establishment of a state of facts more favorable to defendant than that indicated by the jury’s finding, considering the general conditions surrounding the trial, all of which had before that appeared in this cause, and t*he menace of it all to a calm and dispassionate application of a just and humane law, the court is of opinion that the matter here brought into review involved an appeal to race prejudice, and should have been so recognized and treated at the time of the ruling upon it, and, not only so, but the innately evil capacity and tendency of the argument were in short order practically demonstrated by other breaches of the privilege of argument of an even more obviously harmful character. Authority for the holding that the judgment should be reversed on this exception may be found in Tannehill v. State, 159 Ala. 51, 48 South. 662, where many cases are cited; in James v. State, 170 Ala. 72, 54 South. 494, where the conviction was reversed because the solicitor had said to the jury that, “If the negro was taken out of court, there would not be much left;” in Simmons v. State, 14 Ala. App. 103, 71 South. 979, where the Court of Appeals reversed the judgment because the solicitor had said, “You must deal with a negro in the light of the fact that he is a negro,” etc., the court saying, “The.fact that the defendant was of the negro race did not deprive him of the equal protection of the law, or necessarily discredit his testimony, and should not have been used in argument as' a means of arraying the prejudices of the jury against him;” and in Taylor v. State, 50 Tex. Cr. R. 560, 100 S. W. 398; State v. Jones, 127 La. 694, 53 South. 959; State v. Lee, 130 La. 477, 58 South. 155; Hampton v. State, 88 Miss. 257, 40 South. 545, 117 Am. St. Rep. 740; Harris v. State, 96 Miss. 379, 50 South. 626; Hardaway v. State, 99 Miss. 223, 54 South. 833, Ann. Cas. 1913D, 1166; Collins v. State, 100 Miss. 435, 56 South. 527; Vickers v. U. S., 1 Okl. Cr. R. 452, 98 Pac. 467; State v. Cook, 132 Mo. App. 167, 112 S. W. 710; Battle v. U. S., 209 U. S. 36, 28 Sup. Ct. 422, 52 L. Ed. 670.

True it is that the court in its general oral charge to the jury seems to have recognized the capacity for harm contained in the cumulative appeals to prejudice shown by the bill of exceptions, but this court has not approved as altogether effectual the method of treating definite error by subsequent mere general statements of exclusion.—Varnon v. Nabors, 189 Ala. 464, 66 South. 593. It is to be noted also that the court’s remedial remarks to the jury, while expressed in general terms, minimized rather than reproved the arguments in which counsel had indulged, whereas this court has held even in civil cases that where improper, though hot incurable, suggestions may have fallen upon fruitful ground, the effort of the trial court should be by specific, clear, and emphatic instruction, to reprobate the argument and set the jury on the way to a proper verdict.—Wolffe v. Minnis, 74 Ala. 386. This court in Tannehill v. State, supra, observed that courts in other jurisdictions had held, on what seemed to be good reason, that an appeal to race prejudice constitutes so serious a breach of the privilege of argument that even the specifically directed interference of the court cannot suffice to nullify its prejudicial effect. However, the court, going so far only as the exigency of that case required, held merely that error had intervened. Probably the safe middle course in all such cases — cases of appeal to race prejudice included — is indicated by the following language of the court in Birmingham Railway v. Gonzalez, supra: “Each case of this character must be decided upon its own merits. There is no horizontal rule by which these qualities [the prejudicial qualities of improper remarks in argument to the jury] can be ascertained in all cases. Much will depend upon the issues, the parties, and the general atmosphere of the particular case.”

True it is, also, that on the occasion of the next manifestation of the race idea the court did all that it was requested by the defendant to do, and sustained an objection, and that the last appeal to that bias (that in which counsel expressed the hope, hardly required by any duty or necessity of a situation of which there can be no reasonable fear, that the heel of the Ethiopian might never be on the neck of the Caucasian) is extenuated by the recitals of the bill of exceptions that this statement was made in reply to “certain remarks” made by defendant’s counsel in his remarks to the jury, and by his apparently contemporary concession that defendant should not be convicted unless the jury were convicted to a moral certainty of his guilt; but, while it is not easy in the circumstances of this case to conceive what “certain remarks” responsible counsel could have made that required the set-off of an appeal to race prejudice (certainly defendant had no such appeal) and while the court in a case of this character is interested in knowing the real means by which the conviction is procured rather than in the effect of the perfunctory concession of a legal truism, it has not referred to either or both of these later statements by counsel as constituting reviewable or reversible error in the absence of a motion for a new trial — such motions in criminal cases have been made reviewable by the statute (Code, § 2846, as amended by the act of September 22, 1915; Acts, p. 722) — but only as evidencing and illustrating the probable prejudicial effect of the court’s ruling on the matter reserved for review by defendant’s first exception taken in the court below. The court holds, therefore, upon due consideration of all the facts in this case, that for the ruling on the solicitor’s argument the judgment of conviction must be reversed.

(3) 2. The bill of exceptions shows in the next place that defendant required that the judge should charge the jury in writing as provided by section 5363 of the Code; that the evidence and the arguments of counsel were finished about 7 p. m.; that at 10:30 p. m., the judge was ready and did at that time read his charge, the opening paragraph of which was as follows: “For the first time in the history of this court since the appointment of an official stenographer so far as I am advised, the judge of the court has been requested to render his charge to the jury in writing. This is a privilege which the law gives, but whether I will be able to make the law in this case more plain to you in a written charge than I could by minutely explaining it to you orally it matters not.”

Defendant duly excepted to that part of the foregoing which we have written in italics, and the subject-matter of this exception is urged for error. In the matter of exceptions to casual remarks by the court which lay down no proposition of law for the guidance of the jury nor give intimation of opinion as to any controverted question of material fact, it seems that the burden rests upon the appellant to show probable injury as a condition of reversal.—Phillips v. Beene, 16 Ala. 720; Meinaka v. State, 55 Ala. 47; Campbell v. State, 55 Ala. 80. In Griffin v. State, 90 Ala. 596, 8 South. 670, the court said: “Any statement by the court, however unintentional, made in the presence of the jury, calculated to control the jury in its consideration of the weight to be given to testimony, will work a reversal, unless it be clearly shown that such remarks have been explained and excluded from them. It may be thought that the criticism of the court is too restricted and technical; but the principle involved is of such paramount importance it would be dangerous to permit the least infringement of the rule to pass without correction. The separate province of the court and of the jury must be jealously guarded, carefuly recognized and preserved. It is an ‘anchor sure and steadfast’ to protect those on trial for a violation of law, and to restrain the courts from the exercise of undue influence upon the juries, to whom is committed the important and exclusive right of weighing the evidence.”

The statement made by the judge and now in question lays down no proposition of law, nor does it state or intimate any opinion as to any specific isue of controverted fact, but it was deliberately addressed to the jury, and defendant contends that its only possible purpose and tendency was to reflect upon the defense, or, more accurately speaking, upon counsel’s conduct of the defense. The court here agrees that the remark should not have been made, and, considering the case as presented upon the whole record, considering, to recur to Birmingham Railway v. Gonzalez, supra, its “general atmosphere,” that the trial court in making it to the jury, thus deliberately, committed reversible error. If a judgment of error at this point depended upon a finding that the trial court intended or supposed that this part of its charge would have any effect on the course or result of the trial, there would be no hesitation in our denial of reversible error '; but it is matter of common knowledge that jurors are very susceptible to the influence of the presiding judge, watching him with a quick understanding of every indication of opinion, and while we are not to be misled into setting up a too exacting standing for trial judges, we must consider the subject of this exception with a view to its capacity of interpretation 'as an index of what the judge thought of the accused, his counsel, or his case. Indulgently considered, it seems to have been nothing more than an expression of irritation that the request for a written charge should have been made in the conditions then and there obtaining. But the occasion was charged with grave responsibility; the expression of the judge’s opinion was given in formal charge to the jury and had every appearance of great deliberation. It cannot be assumed that the jury gave it no consideration. At best it was erroneous, and it carried a suggestion that should have been carefully avoided. It carried a necessary implication, a forcible suggestion, that the prisoner, or his counsel, was engaged in a useless performance and unnecessarily delaying the rapid progress of the case to a conclusion. It thus reflected unfavorably upon the merits of the defense, though,. perhaps, not so directly as to fall within the rule of Griffin v. State, supra. But the defendant had only demanded a law-given right, and it should have been conceded without unfavorable comment. In some jurisdictions the appellate courts take the view that it is impossible to determine the extent to which the rights of a party may have been prejudiced by the unfavorable suggestions of the trial judge, and for that reason reversals are ordered in such cases.—21 Ency. PI. & Pr. 994. The court here finds no need to go that far at this time; its decision is simply this: That the part of the charge to which exception was reserved was improper, and in the peculiar circumstances of this case probably prejudicial to the defendant; it may have been highly prejudicial. Therefore the court holds.it for reversible error.

Reversed and remanded.

All the Justices concur except McClellan, J., who dissents.