Broadway v. State

• Decision Date: 19 June 1952
• Docket Number: 8 Div. 643
• Citation: 257 Ala. 414,60 So.2d 701
• Parties: BROADWAY v. STATE.
• Court: Alabama Supreme Court

Page 701

60 So.2d 701

257 Ala. 414

BROADWAY v. STATE.

8 Div. 643.

Supreme Court of Alabama.

June 19, 1952.

Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Robt. P. Bradley, Montgomery, of counsel, for petition.

Smith, Johnston & Butler, Huntsville, opposed.

FOSTER, Justice.

In this case the Court of Appeals reversed a judgment of conviction in the circuit court whereby appellant was charged with keeping a gaming table under Title 14, section 255 of the Code.

The opinion of the Court of Appeals shows that the defendant did not testify in the case or introduce any witnesses, and that during the argument to the jury the solicitor made the following statement: 'Mr. Smith criticizes our witness in this case, but Mr. Smith has not given us any witness to criticize.' We presume Mr. Smith, there referred to, was the attorney for defendant in the trial of the case. Defendant's counsel made no objection to the statement of the solicitor during the progress of the trial. The question was raised in no other way than by a motion for a new trial. The opinion of the Court of Appeals reversing the judgment of the circuit court in this respect is based upon its interpretation of the Act of June 23, 1949, General Acts 1949, page 150, which added to section 305 of Title 15 of the Code, the following words: 'If the solicitor or other prosecuting attorney makes any comment concerning the defendant's failure to testify, a new trial must be granted on motion filed within thirty days from the entry of the judgment.' This was supposed to make it mandatory upon the circuit court to grant the motion for a new trial when any such comment is made during the progress of the trial, although no objection was made to such comment, and it may not appear that the comment was made in the presence of the jury, and although it may not appear that the comment was of such character as to be prejudicial to the defendant, and may have been of such character as that it could have been easily eradicated from the mind of the jury by prompt instructions from the court, and although it is possible that such would have been done if objection had been made.

It is also to be observed that the motion must be granted if it is filed within thirty days from the entry of the judgment, notwithstanding it may not have been brought to the attention of the judge during such thirty day period and continued to some future time as required by section 119, Title 13, Code.

It appears from the language of the amendment itself that there are only two conditions making it mandatory upon the court to grant the motion for a new trial. One is that comment was made by counsel for the State on defendant's failure to testify, and the other is that a motion for a new trial was filed within thirty days from the entry of the judgment.

Prior to the adoption of that amendment the rule was well established in this State, interpreting section 305, supra, as it then existed without the amendment, that it was necessary to object to the comment by counsel or to move to exclude it, and then it was the duty of the judge not only to sustain said motion or objection, but also to exercise a reasonable degree of effort to eradicate its effect from the mind of the jury; and if this Court was of the opinion on appeal that the comment of counsel was of such nature as that it was eradicable, and if the court did use reasonable effort which seemed to be sufficient to eradicate its effect upon the jury, the judgment of conviction should not be reversed or a motion for a new trial granted on that account. Gable v. State, 245 Ala. 53, 15 So.2d 600; Arant v. State, 232 Ala. 275, 167 So. 540; Kilpatrick v. State, 213 Ala. 358(22), 104 So. 656; Smith v. State, 34 Ala.App. 194, 38 So.2d 287; Rhodes v. State, 34 Ala.App. 481, 41 So.2d 623; Everage v. State, 33 Ala.App. 291, 33 So.2d 23. In the last cited case the Court of Appeals very carefully collated and analyzed various statements made by prosecuting attorneys, thought to be in violation of section 305, supra, with a citation of cases and the results reached in those cases. That analysis of those cases was copied in the opinion by the Court of Appeals in Harris v. State, 33 Ala.App. 623, 36 So.2d 254. Reference to that study is helpful in determining whether or not the comment of the solicitor in the instant case is such as is prohibited by section 305, supra.

It is our opinion that such statements not having direct reference to the failure of the defendant to testify should be interpreted in the light of what has transpired in the case, the nature of the evidence against the defendant, the burden of proof fixed by law, and any other circumstances which may have occurred during the trial having a tendency to show that the solicitor was directing his remarks to the failure of the defendant to testify rather than to a failure to submit the testimony of other witnesses, which may have been peculiarly subject to his call and known to defendant to be available to him.

In this case we are not informed in respect to such matters by the opinion of the Court of Appeals. But we are informed that such remark was not objected to, and no attention was given it until after the conviction of the defendant and on the motion for a new trial. It does appear that it was made in argument to the jury. The motion for a new trial was made within the thirty days and continued and kept alive as required by section 119, Title 13, Code.

We are therefore here presented with a situation where, according to the language of the amendment to the Act, it becomes the mandatory duty of the court to grant a new trial on conviction when the State's attorney in argument to the jury commented upon an absence of all witnesses introduced by the defendant which includes himself. The situation so presented, if that effect is given to the statute, makes it a ministerial act on the part of the court, for no judgment of the court is called into play when the record shows that by an interpretation of the remark of counsel it may be found to be broad enough to cover the failure of the defendant to testify regardless of the circumstantial incidents of the trial. Nothing else may be done except grant a motion for a new trial if defendant is convicted.

We are referred to the Automatic Appeals Act as analogous to the right to make such interpretation and to uphold such an Act thus interpreted. The Automatic Appeals Act is that of June 24, 1943, General Acts 1943, page 219, referring particularly to section 10 of that Act, which is set out in the pocket part of the Code as section 382(10), Title 15. There are two aspects to that provision of the law. One makes it discretionary with the appellate court whether or not the judgment of conviction should be reversed if there is any testimony given in the case by the prosecution which is seriously prejudicial to the rights of the defendant, although there is no objection or exception made. (This of course means unlawful testimony.) The other feature of it is that the appellate court shall consider all the testimony given in the case,...