Brock v. State

• Decision Date: 15 June 1899
• Citation: 123 Ala. 24,26 So. 329
• Parties: BROCK v. STATE.
• Court: Alabama Supreme Court

26 So. 329

123 Ala. 24

BROCK v. STATE.

Supreme Court of Alabama

June 15, 1899

Appeal from circuit court, Lauderdale county; James J. Banks, Judge.

Polly Brock was convicted of living in adultery with Bill Coppin and appealed. Reversed.

Under the opinion on this appeal, it is unnecessary to set out in detail any of the facts relating to the rulings of the trial court to which exceptions were reserved, except that in reference to the argument of the solicitor. In reference to this ruling the bill of exceptions contains the following recital: "In the course of his argument the solicitor stated to the jury that Bill Coppin had failed to take the stand and deny his illicit intercourse with the defendant, or explain what he was doing out in the woods. Defendant objected, and excepted to this statement of the solicitor because Bill Coppin was one of the defendants, and his failure to testify could not be made the subject of comment. The court refused to sustain this exception, but stated that the argument was legitimate, and to this action of the court the defendant then and there duly excepted." The cause was tried before the Honorable J. J. Banks, but before the preparation of the bill of exceptions the term of the Honorable J. J. Banks as circuit judge had expired, and, not having been re-elected, he declined to sign the bill of exceptions, being without authority thereto. In this court the defendant moved to re-establish the bill of exceptions setting out in her motion the facts just stated, and submitting with said motion the affidavit of counsel that the facts were true.

Tyson J., dissenting.

Emmett O'Neal, for appellant.

Chas. G. Brown, Atty. Gen., for the State.

SHARPE, J.

The official term of the trial judge having ended before the expiration of the time allowed for signing the bill of exceptions, the defendant has the right to establish it here upon sufficient proof of its correctness. Code, § 622. The proof submitted upon the motion to establish the bill of exceptions without conflict shows it to be correct, and the motion will therefore be granted.

The defendant and one Bill Coppin being indicted jointly, a severance of the trial was obtained. The solicitor, in his argument to the jury, commented upon the fact that Coppin "had failed to take the stand and deny his illicit intercourse with the defendant, or explain what he was doing out in the woods." Upon objection by defendant's counsel to this comment, the court stated that the argument was legitimate. There is a recognized rule of evidence which authorizes a presumption unfavorable to a party failing to produce a witness having peculiar knowledge of facts from which the party claims a benefit, and where the witness is accessible to such party and not to his adversary. In Bates v. Morris, 101 Ala. 282, 13 So. 138, this rule was referred to, and it was added that "such presumption is, however, indulged with great caution, and only when it is manifest the evidence is within the power of one party, and is not accessible to his adversary." In that case the question involved the bona fides, as to creditors of Bates, of a transfer of property by him to his wife, and it was held that the last rule stated was applicable, and that no unfavorable inference could be raised against the wife from her failure to introduce her husband as a witness, though he was present at the trial. While there has been diversity of opinion in courts of other states as to the right of the jury to consider the nonproduction of witnesses as a circumstance against the party to whom they are available, the decisions of this state appear without conflict to sustain the rule as stated in Bates v. Morris, supra; Patton v. Rambo, 20 Ala. 485; Jackson v. State, 77 Ala. 18; Carter v. Chambers, 79 Ala. 223; Pollak v. Harmon, 94 Ala. 420, 10 So. 156; Crawford v. State, 112 Ala. 1, 21 So. 214. The last-quoted case denied the right of counsel to comment in argument upon the failure of the opposite party to examine a witness who was accessible to both parties. The authorities rest upon the consideration that there is, in such cases, no presumption that the testimony, if taken, would be more favorable to one party than to the other, and no room for conjecture as to what might have been shown by an examination.

In the present case Coppin could not have been compelled to testify to any fact tending to criminate himself. The offense being one of which he and the defendant must both have been either guilty or innocent, his mere refusal upon the ground of self-incrimination might have been construed by the jury to the defendant's disadvantage. On the contrary, if he had not declined, the credibility of his testimony would have been open to assault upon the ground of interest. If, in view of the fact that the scope allowed to his examination would have depended largely upon Coppin's own volition, the testimony could be deemed accessible to the defendant, yet it does not appear to have been less accessible to the state. Under the circumstances, no presumption could arise that the testimony was withheld from sinister motives, and the jury should have been left to try the issue upon the evidence introduced. The proneness of the jury to consider a defendant's failure to testify in his own behalf, and the prejudice to the defendant which would naturally result therefrom, induced the legislative prohibition against any adverse comment in argument upon such failure. The statute does not cover this precise case, but the argument was improper under the general rule before stated; and, in determining its effect, we are impressed with the consideration that the same results which the statute intended to forestall when the defendant is not examined may follow, as well, when the person not produced is one jointly implicated with the defendant. The argument objected to was, therefore, forcibly calculated to injure the defendant's case, and the error committed in its indulgence must work a reversal of the judgment.

Some exceptions relating to the admission of testimony appear in the record. They could not affect the disposition to be here made of the case, and may not arise on another trial. The defendant will be held until legally discharged, and the cause will be reversed, and remanded to the circuit court.

TYSON J. (dissenting).

The opinion in this case practically destroys all room for the application of the universal rule or doctrine recognized by this court and all courts of last resort, as will be shown by a careful examination of the facts as presented by the record and a proper analysis of the cases of this court cited in the opinion, and of the opinions of other courts, upon the point here involved. One of the theories for a refusal to apply the rule, recognized by the writer of the opinion in this case, is based upon the idea that Coppin was "accessible" as a witness for the state. To my mind the writer has misconceived the meaning of the word "accessible," and the rule or doctrine involved in this case. He limits the meaning of the word "accessible" to the presence in person of the witness, or the power of the state to procure his personal presence. Such an interpretation, I repeat, not only practically abolishes the application of the rule, but practically destroys it, by limiting it in its application to only those cases where the whereabouts of the witness is known to, and he is accessible to, the defendant, and unknown to the prosecuting officers of the state. If this is the correct meaning of the word, and if the learned chief justice who made use of it in the case of Bates v. Morris had intended to be so understood, he would never have employed this language: "The first instruction given to the jury at the request of the appellee is not very clearly expressed.

As we construe it, as matter of law, it asserts that the failure to examine the husband as a witness should be regarded as a fact or circumstance tending to the proof or disproof of the matter in dispute. It may be that it was intended to assert no more than the failure to examine the husband was matter of inference or presumption unfavorable to the appellant in weighing the other evidence. In either point of view, we deem the instruction erroneous. The husband was in court accessible to either party, and a competent witness to the same extent for the one party as for the other; and it is difficult to assign any just reason for imputing the failure to examine him as a witness, as matter of evidential inference or as ground of unfavorable presumption for or against the one party, which would not apply to the other. To neither can be imputed the withholding or suppression of evidence, and all that can be properly said is that neither deemed it necessary to add the evidence of the husband touching the matter in dispute." The facts of the case show that Mrs. Bates had introduced evidence in support of her claim, and it was a matter of dispute between her and the plaintiff upon conflicting testimony. Therefore the rule here involved had no application, as we will show later on in this opinion. The chief justice, however, did state the rule to be this: "Cases arise in which material facts lie exclusively within the knowledge of a particular person. If such person is accessible, and is not produced and examined, the party claiming benefit from the facts must generally fail from a want of evidence. And cases may present themselves in which a person having peculiar knowledge of facts from which a party claiming to derive benefit is accessible to such party, and not to his adversary. If such person is not produced and examined, a presumption may arise that the facts do not exist. Such presumption is, however, indulged with great caution, and only...