Ailer v. State

• Decision Date: 28 August 1959
• Docket Number: No. 399,399
• Citation: 114 So.2d 348
• Parties: Alberta E. AILER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 348

114 So.2d 348

Alberta E. AILER, Appellant, v. STATE of Florida, Appellee.

No. 399.

District Court of Appeal of Florida, Second District.

Aug. 28, 1959.

Rehearing Denied Sept. 21, 1959.

Jordan Johnson, West Palm Beach, for appellant.

Richard W. Ervin, Atty. Gen., and Irving b. Levenson, Asst. Atty. Gen., for appellee.

KANNER, Judge.

Alberta E. Ailer, sixty-six years of age and a practical nurse, was convicted of the commission of the crime of abortion. While there are several questions presented on the appeal, we shall confine our consideration to what we deem the major complaint. This question challenges the propriety of the trial judge's action in denying a mistrial when the county solicitor in his argument to the jury stated, in effect, that the accused had been committing abortions for years.

The background of the purported improper remark should be reviewed by the court in its scrutiny of Alberta Ailer's contention that it was improper and prejudicial.

During the course of the trial, the testimony of Dr. John Foster Chapman, a state's witness, was introduced in deposition form. This deposition reflects that defendant's counsel on cross-examination questioned the witness as to his knowledge of the defendant. The doctor stated that the first he heard of her was through a newspaper account that 'she was picked up on suspicion of doing abortions in Texas, as I recall.' Later in the trial, the accused on her direct examination testified that she was arrested in New Mexico. On cross-examination in connection with this phase, the county solicitor questioned her as follows:

'Q. You were arrested in another case? A. That's right.

'Q. Which was the same type of case, abortion?'

Counsel for the defense immediately interceded as follows:

'Mr. Johnson: Your Honor, I ask for a mistrial for the Counsel for the State Putting this question to this Jury in absolute derogation of all of our procedure, that to me * * *

'The Court: Just a minute, Mr. Johnson. Gentlemen of the Jury, I want you to disregard any statement about any other charge that might be similar to this, which involves this defendant, disregard that statement. I am going to deny the motion for a mistrial.'

Counsel for the accused then again urged his motion. The court replied:

'Well he was clarifying, as I understand, where this person was arrested, I don't know where she was, I believe it was brought out where she was arrested in New Mexico, I don't know.'

The question was never answered.

Subsequently, during closing argument to the jury, the county solicitor was charged with making the purported improper remark. This was raised by the defendant through her motion for new trial. Though the arguments to the jury were not recorded, this remark appears in substance through the court's order denying the defendant's motion for new trial as amended:

'* * * he indicated, to the best of the Court's recollection, in his argument to the jury to the effect and in substance that the defendant had been committing abortions for years. It is noted that the arguments of counsel were not recorded and the exact language in question and the related context are not available. Upon such comment, the defendant's attorney thereupon moved for a mistrial on the grounds that the same was prejudiced and inflammatory. The Court denied the motion and directed the jury to disregard the Solicitor's reference to such alleged conduct on the defendant's part and instructed them that the only matter they had to consider and decide was the charge involved in the case before them.'

There is also a notation by the court reporter in the transcribed record showing that a motion for mistrial was made due to the remarks made by the county solicitor, the court's instruction to the jury to disregard them, and the denial of the motion.

The state asserts that the remark by the prosecuting attorney during closing argument, since it does not affirmatively appear in the record, cannot be considered and that its appearance in a motion for new trial does not suffice. We agree that where allegedly improper argument of a prosecuting attorney to a jury does not appear in the record, a motion for new trial averring the alleged improper remark is not self-proving and cannot activate such remark as a basis for error on appeal. Brooks v. State, Fla.1953, 64 So.2d 914; Hollman v. State, 1939, 140 Fla. 59, 191 So. 36; and White v. State, 1935, 121 Fla. 128, 163 So. 403. But as heretofore delineated, the record actually reveals circumstances that remove the present issue from the scope of the stated rule. The trial judge entered a five-page order denying the motion for new trial. The order dealt almost entirely with the single question of the purported improper remark. It is apparent that the trial judge...