Daniels v. State

• Decision Date: 21 January 1943
• Docket Number: 1 Div. 162.
• Citation: 243 Ala. 675,11 So.2d 756
• Court: Alabama Supreme Court
• Parties: DANIELS v. STATE.

11 So.2d 756

243 Ala. 675

DANIELS v. STATE.

1 Div. 162.

Supreme Court of Alabama

January 21, 1943

Rehearing Denied Feb. 18, 1943. [Copyrighted Material Omitted]

Wm. V. McDermott, Wm. E. Johnston, and S.W. Pipes III, all of Mobile, for appellant.

Wm. N. McQueen, Atty. Gen., and Walter W. Flowers and John O. Harris, Asst. Attys. Gen., for the State.

THOMAS Justice.

The offense is rape, the verdict guilty, and the sentence death.

The appellant Henry Daniels, Jr., was separately indicted with one Curtis Robinson by the October Term, 1941, Grand Jury of Mobile County, charging him with having forcibly ravished Zeola Mae Armstrong, a woman. Being unable to employ counsel two practicing attorneys at the Mobile Bar were by the court on October 22, 1941, appointed to represent appellant on his trial below. Appellant was arraigned upon said indictment on November 4, 1941, at which time he pleaded "not guilty" and his trial was set for November 25, 1941.

On November 17, 1941, in open court in the presence of appellant and his counsel, a special venire for appellant's trial was ordered and drawn, and a copy of the indictment was ordered to be forthwith served on the defendant, together with a list of the jurors constituting such venire. The case proceeded to trial on November 25, 1941, and not being completed on said date, the trial was recessed until the next day for its conclusion, after which the jury brought in its verdict of guilty as charged in the indictment, fixing appellant's punishment at death by electrocution. The lower court remanded appellant to jail to await the action of the court, and two days later the lower court entered its judgment of guilt upon the verdict against appellant for said offense of rape, and at said time, duly sentenced appellant to suffer death by electrocution. Notice of appeal was immediately given, and request made for a suspension of execution of the sentence pending appeal, which was granted.

The record fails to show that the sheriff served on defendant copy of indictment and venire in pursuance of the order of the court. It is declared: "Where the record shows that the court has ordered the sheriff to serve a copy of the indictment and venire upon the defendant in compliance with this section the presumptions are in favor of the sheriff having faithfully discharged his duty in the absence of any showing in the record. Hughes v. State, 117 Ala. 25, 23 So. 677; Breden v. State, 88 Ala. 20, 7 So. 258." Code 1940, T. 30, § 63, and note.

Appellant's counsel state that the court erred in overruling the objections of appellant to the preliminary statements of the state solicitor, viz:

"That the two defendants Henry Daniels, Jr., and Curtis Robinson, have gone together and often discussed and talked about, and expressed the desire to have sexual intercourse with a white woman. * * *

"This defendant and Curtis Robinson, who is not being tried here today, often talked about their desire to have sexual intercourse with a white woman. * * *

"Henry Daniels, Jr., and Curtis Robinson were together that night and again expressed this desire."

The nature and scope of respective statements by counsel to the jury have been discussed in many jurisdictions. The general rule is thus stated in 64 Corpus Juris, p. 235, § 251:

"Although it may be omitted if desired, a party is entitled as of right, in a case involving issues of fact, to make an opening statement to the jury. Its purpose and function is to advise the jury of the facts relied on by the party to make up his right of action or defense, to define the nature of the questions involved, and advise them of the issues to be tried so as to enable them to understand the case to be tried. In the statement counsel may outline what he expects to prove (Brown v. Leek, 221 Ala. 319, 128 So. 608; Atlanta Life Ins. Co. v. Canady, 225 Ala. 377, 143 So. 561), unless it is manifest that such proof would be incompetent or the offer or statement made for the manifest purpose of creating prejudice and influencing the jury, and he may state an anticipated defense of his opponent in so far as it appears of record. * * * Counsel should be allowed considerable latitude in his opening statement, but in the absence of regulation by statute, the time when it should be made, its fullness or brevity, and its general manner and character, rest largely within the discretion of the trial court, which must necessarily rely upon the good faith of counsel properly to confine his remarks. Counsel must restrict his opening statement to the issues of the case, and to the theory of the case as fixed by the pleadings, and although it is ground for reversal for him to call attention to collateral matters calculated to prejudice the jury, the fact that statements proper in themselves might also produce other collateral consequences harmful to the opposite party does not, if made in good faith, make the statements improper. Counsel will not be permitted to make the opening statement a medium for arguing the merits or the law, nor will the relation of testimony at length be tolerated. * * *."

See, also, 38 Cyc. 1475; Handley v. State, 214 Ala. 172, 106 So. 692.

In Wilkey et al. v. State ex rel. Smith, 238 Ala. 595, 192 So. 588, 589, 129 A.L.R. 549, this court stated the effect of our decisions on this question as follows:

"In Loeb v. Webster, 213 Ala. 99, 104 So. 25, to unduly limit the opening statement of counsel was held to be error. In Birmingham Baptist Hospital v. Branton, 218 Ala. 464, 118 So. 741, it was held not to be improper to state the facts or to remark that the mother would suffer by baby's death. In Brown v. Leek, 221 Ala. 319, 128 So. 608, it was held that immaterial and prejudicial matter may not be introduced in opening statement of counsel, that the time, manner and character of said statement was within the discretion of the trial court. In Atlanta Life Ins. Co. v. Canady, 225 Ala. 377, 143 So. 561, it was held that opening statements may disclose the basis of the suit and the source of title. In Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837, it was held that counsel may, in good faith, show the theory on which the proceedings were had and state the facts of the res gestae.

"In Atlanta Life Ins. Co. v. Ash, 228 Ala. 184, 188, 153 So. 261, 264, this Court said: 'The right of counsel to make a preliminary or opening statement to the jury is fully recognized in this jurisdiction, but this right is not unlimited. The purpose and function of such a statement is to advise the jury of the facts relied upon to make up his right of action or defense, "to define the nature of the questions involved, and advise them of the issues to be tried so as to enable them to understand the case to be tried." Counsel, of course, may, in a reasonable way, outline what he expects to prove, unless it is manifest that such proof would be incompetent, or the offer or statement is made for the purpose of improperly influencing the jury. * * * ' "

In this connection, we observe that there were objections and exceptions to the introduction of the confession in evidence, and in the closing arguments of the state's solicitor to the jury he said, "These boys were going about talking about getting some white woman," referring to the conversations and actions of the defendant in question, and of Curtis Robinson, the defendant in another case presently before this court. The specific evidence on which this argument rested was before the jury by way of the confession of defendant, that:

"Curtis Robinson and I were talking about getting a white woman. This happened about one week ago while he and I were working at Turner Terminals. We agreed to sometime get a white woman, and on last night when we started out of the alley and saw this white woman coming Curtis said 'here comes a white woman let us * * * ' and I said all right and we did what I have told."

Both of the remarks were relative to the woman in question.

"About three o'clock yesterday afternoon Curtis Robinson and I were at the C.I.O. Hall on Warren and Elmira Streets and he and I talked about getting a white woman. We agreed to get one last night and when he and I left his house last night we were going to look for a white woman and the lady whom we took in the alley is the first one whom we saw."

When the defendant was on the stand as a witness in his behalf he made denial of the matter above indicated in his written confession as follows: "I did not see this white lady coming along the street and I did not say, 'Here comes one now. Let's get her.' I never saw her before until she came to the City Jail. I never saw this woman until they brought me to the jail. * * * No, sir, Robinson wasn't scratched on the chest and the arms, he was scratched right up here and there. No, sir, this white lady is not the one who scratched him in an effort to get away from him and me, his wife scratched him. * * * As to whether Josephine Jones sat there and pointed her finger at me and said I was the one who had raped this white lady, she said she saw us run. * * * No, sir, I never denied it when Josephine Jones told you that me and Curtis Robinson ran out of this alley because I didn't do it. As for when I was brought in the Police Station where you say Mrs. Zeola Mae Armstrong was sitting on a bench with her husband, and you say she said, 'Yes, that is one of them,' and that I never denied it, she didn't say it. * * * In answer to your question, 'At the Police Station, didn't they bring Curtis Robinson into your presence and he said, "I have already told them all about us attacking that white woman", and then you said that you did too, didn't you', and my answer is, he didn't tell me that. * * *."

Was the action...