Cook v. State
| Decision Date | 13 March 1952 |
| Docket Number | 6 Div. 274 |
| Citation | 36 Ala.App. 449,57 So.2d 832 |
| Parties | COOK v. STATE. |
| Court | Alabama Court of Appeals |
T. K. Selman and Thomas Leon Beaird, Jasper, for appellant.
Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
The accused was indicted and convicted of the offense of grand larceny, more specifically that he stole timber from the lands of the State of Alabama.
The prosecution in the main anchored its evidence on these circumstances:
The foresters discovered that several pine timber trees had been cut on the State's lands and the logs from the trees had been removed.
The appellant delivered some pine logs to the sawmill of Berry Lumber Company. A cut from a stump in the forest and one from a log that appellant sold to the sawmill were brought into court. An expert witness made a comparison, and the effect of his testimony was that the two portions or parts came from the same tree.
The defendant claimed that the logs he sold came from his own land or lands in which he had an interest.
The first witness introduced by the State was the chief engineer of the Department of Conservation. His testimony in the main related to the survey which he made of the lands from which the timber was missing.
The next witness was a forester of the State Department of Conservation. He related the circumstances about securing the sections or segments of the tree. He testified also as an expert in the matter of the comparison of the two parts.
During the direct examination of these two witnesses, counsel for the appellant interposed frequent objections to questions. There is no indication that the objections were frivolous. It appears that counsel was attempting to protect the interest of his client as of course he had a right to do.
The examination was at times rather tedious. In many instances the trial judge interrogated the witnesses. Appellant's attorney objected to the court asking the questions.
This pattern of procedure continued pretty much throughout the progress of the trial, but more particularly prior to the incident we now copy from the record:
'
'(Witness puts sections of log together)
'
'Mr. Selman: I object to that, it is not the best evidence, the jury is here they can see for themselves.
'The Court: During your fifteen years experience as a forester, have you observed trees and the nature of trees of find out about the different growths, their age and history and things of that kind?
'The Witness: Yes, sir.
'The Court: How do you tell the age of a tree?
'The Witness: By counting the annual rings as they show on the cross sections.
'The Court: Have you counted the rings on these?
'The Witness: No, sir.
'The Court: In your judgment, are those pieces of wood from the same stump?
'Mr. Selman: I want to object to that, if the Court please, it invades the province of the jury, calls for a conclusion of the witness, it is incompetent, irrelevant and immaterial and it is asked by Your Honor instead of the Solicitor.
'The Court: Mr. Selman, is it your contention that you don't want all the evidence brought out----
'The Court: Do you object to the Court asking any questions?
'The Court: This is not a ball game, Mr. Selman.
'The Court: Your motion is overruled.
'Mr. Selman: We except.'
We recognize, of course, the right that the trial judge has to interrogate witnesses. 53 Am.Jur., Trial, Sec. 75, p. 74; Brandes v. State, 17 Ala.App. 390, 85 So. 824; Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692.
However, the examination of witnesses is the more appropriate function of counsel, and instances should be rare and conditions exceptional which will justify the presiding judge in conducting frequent and extensive examinations.
In the case at bar we do not conclude that reversible error should be predicated on the sole fact that the judge did propound many questions to witnesses. Our view, however, forces the conclusion that this frequent practice magnified and enlarged the significance and possible injurious effect of the judge's statement to counsel. The statement was: 'Mr. Selman, is it your contention that you don't want all the evidence brought out----'
The setting of the assertion is shown in the quotation from the record supra.
Our review is invited by the methods indicated and also by motion for a new trial.
The approach to this inquiry must be referable to this fundamental question: Were the substantial rights of the appellant prejudiced by what was said by the trial judge?
If our answer to this question depended upon a finding that the judge intended or supposed that his statement to the attorney would be harmful to the rights of the defendant, we could without hesitation answer the query in the negative. But this determination is not the extent of our reviewing task.
The average juror does not always grasp the real significance or true meaning of the interposition of an objection by counsel. If the presiding judge questions the sincerity or propriety of an objection and intimates in effect that it is an effort to withhold material testimony, the jury may adopt this view and follow the suggestion throughout the progress of the trial. If so, clearly, the appellant's attorney when he makes an objection places himself in a false light before the jury.
The constitutional right of the accused to be heard by counsel could be seriously restricted, even to the point that the right is in effect denied.
It is expected of the trial judge, in the exercise of perfect impartiality, to see that the law is properly administered and justice done...
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White v. State
...to see that the law is properly administered and justice done both in respect to the State and the accused." Cook v. State, 36 Ala.App. 449, 452, 57 So.2d 832 (1952). It is a fundamental concept under our State and federal constitutions that any person charged with a criminal offense is ent......
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Smith v. State
...were asked, here, solely for the purpose of establishing the chain of custody of the murder weapon. We note that in Cook v. State, 36 Ala.App. 449, 57 So.2d 832 (1952), cited by appellant, the court specifically states: "In the case at bar we do not conclude that reversible error should be ......
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Moore v. State, 5 Div. 152
...conditions exceptional which will justify the presiding judge in conducting frequent and extensive examinations." Cook v. State, 36 Ala.App. 449, 451, 57 So.2d 832 (1952). However, the only objection--"Judge, we would respectfully object to this line [of] questioning"--was made after the tr......
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Pettway v. State
...to see that the law is properly administered and justice done both in respect to the State and the accused.' Cook v. State, 36 Ala.App. 449, 452, 57 So.2d 832 (1952)." White v. State, 546 So.2d 1014, 1027 (Ala.Cr.App.1989). In his reply brief, the appellant "All manner of mischief will resu......