Austin v. State

• Decision Date: 17 June 1941
• Docket Number: 8 Div. 118.
• Citation: 4 So.2d 442,30 Ala.App. 267
• Parties: AUSTIN v. STATE.
• Court: Alabama Court of Appeals

4 So.2d 442

30 Ala.App. 267

AUSTIN v. STATE.

8 Div. 118.

Alabama Court of Appeals

June 17, 1941

Rehearing Denied Oct. 7, 1941.

Certiorari denied by Supreme Court in Austin v State, 8 Div. 157, 4 So.2d 444.

The bill of exceptions recites:

"While arguing the case for the State befor the jury, the Solicitor made the following statement to the jury: 'Gentlemen of the jury, you have not heard the testimony of the defendant yet.' The Attorney for the defendant objected to the above statement on the ground that the same was improper, and incompetent and illegal and violated the constitutional rights of the defendant, and thereupon the defendant's attorney immediately moved the Court that a mistrial be entered in this cause because of said improper remark. Whereupon the following proceedings were had and done in the presence of the jury:

"The Court: The motion is overruled, but, Gentlemen of the jury you forget that. No attorney can comment on the fact that the defendant did not testify.

"Mr Snodgrass (Attorney for defendant): I would like to ask the court to instruct the jury that this is an improper argument to the jury.

"The Court: Yes, that is improper.

"Mr. Snodgrass: And is no consideration of theirs in this case whatever.

"The Court: That is right. Forget it, gentlemen of the jury.

"Mr. Snodgrass: The defendant excepts to the action of the court in refusing to declare a mistrial.

"The Court: All right, I give you an exception-now go to the jury."

Said matter is made a ground of the motion for a new trial.

Proctor & Snodgrass, of Scottsboro, for appellant.

Thos. S. Lawson, Atty. Gen., and Clarence M. Small, Asst. Atty. Gen., for the State.

SIMPSON Judge.

The trial upon an indictment for murder resulted in the conviction of appellant of manslaughter in the first degree. He insists that the affirmative charge was due, or, failing, that his motion for a new trial should have been granted because the evidence both for the State and the defense supported, without substantial conflict, his plea of self-defense. But, aside from disagreeing with his view of the evidence, we think such a question was exclusively for the jury's decision.

Concededly, and without conflict, the appellant killed the deceased by the intentional use of a deadly weapon, a pistol. Hence, malice, design and motive may be inferred without more. Cooley v. State, 233 Ala. 407, 410, 171 So. 725; Coates v. State, 29 Ala.App. 616, 199 So. 830, 831.

The statement in the Cooley case, approvingly quoted by our court in the Coates case, is directly applicable here: "Defendant's testimony [instant case, testimony of all the witnesses] admits an intentional killing with a deadly weapon. The burden was then upon him to prove * * * self-defense * * *. And, though the evidence of defendant may have been without dispute, its credibility was for the jury * * *. They were not bound to accept it as true * * *. Indeed, they might well have rejected it in their discretion. Since they did so, their verdict was well supported."

Furthermore, while the evidence was without controversy that the deceased provoked the difficulty which resulted in his death, it does not follow, ipso facto, that all of the elements of self-defense were so uncontrovertibly proved as would take away the decision of such issue from the jury. For, as we interpret the evidence, it was a questionable issue of fact whether or not the defendant was in imminent peril or used all reasonable means to avoid, or escape from, the fatal affray. Under the evidence in the instant case, these matters were clearly for the jury's decision.

The court therefore, as to this ground, acted correctly first in refusing the affirmative charge and later in overruling the moton for a new trial. Austin v. State, 29 Ala.App. 327, 195 So. 566.

There was, however, a grave and substantial error committed pending trial, which patently should dictate a reversal of the judgment of conviction. For reasons, not disclosed, the defendant elected, as was his constitutional privilege, not to testify at his trial. Constitution, Art. 1, Sec. 6. Having thus elected, his failure to testify should not have been the subject of comment by counsel, and to have so commented was in direct...