Dennison v. State

• Decision Date: 01 February 1921
• Docket Number: 6 Div. 763
• Citation: 17 Ala.App. 674,88 So. 211
• Parties: DENNISON v. STATE.
• Court: Alabama Court of Appeals

88 So. 211

17 Ala.App. 674

DENNISON v. STATE.

6 Div. 763

Court of Appeals of Alabama

February 1, 1921

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

A.A Dennison was convicted of the larceny of an automobile, and he appeals. Reversed and remanded.

Roderick Beddow and Ben F. Ray, both of Birmingham, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The defendant was convicted under the first count of an indictment which charged him with grand larceny, in that he feloniously took and carried away one Dodge automobile of the value of $1,200, the personal property of J.R. Hobbs. He was given an indeterminate sentence of five years minimum and seven years as a maximum imprisonment in the penitentiary. From this judgment of conviction he appeals.

It developed upon the trial that Reverend J.R. Hobbs, a minister of the gospel and pastor of the First Baptist Church, in the city of Birmingham, left his Dodge automobile standing in front of his church in said city during the entire afternoon of Wednesday, January 7, 1920 and that when he went to get it, at about 8:30 o'clock that night, the car was gone. The car was located on Friday night following in Athens, Ala., in the possession of a Mr. A.J. Keyes, who claimed to have bought it from this defendant. It was afterwards returned to the owner.

During the progress of the trial in the court below innumerable exceptions were reserved to the rulings of the court, and on this appeal these exceptions have been grouped into the three principal propositions upon which the appellant relies to effect a reversal. These propositions, as stated in brief by counsel for appellant, are as follows:

"(1) The question of a continuance of a case is usually in the discretion of the court, but the court must not so exercise this discretion as to contravene the Bill of Rights of the state of Alabama. Article 1, §§ 6 and 9, of the Constitution.

"(2) The trial court should not use any language which tends to bring the trial lawyer into contempt before the eyes of the jury.

"(3) During the trial of a criminal cause, where the accused is being tried for the larceny of an automobile, it is error for the court to admit evidence for any purpose tending to show the theft of another automobile by the same party, but at a different time and place."

We shall deal with these propositions in the order in which they are presented.

As to the first proposition, in view of the conclusion reached in this case and hereinafter to be announced, we are of the opinion that it would serve no good purpose to deal specifically with the many exceptions reserved to the rulings of the court in this connection. We shall merely restate the well-known rule that the granting of continuances, or the refusal to grant a continuance, is discretionary, and unless it affirmatively appears that this discretion has been abused the action of the court in matters of this character is not revisable upon appeal. Walker v. State, 117 Ala. 85, 23 So. 670; Childress v. State, 86 Ala. 77, 5 So. 775; Sanderson v. State, 168 Ala. 109, 53 So. 109. Under this discretionary power, as well as under the provisions of article 1, § 9, of the Constitution of 1901, it cannot be questioned that the court in the instant case had the power to grant the motion for a continuance, even at the stage of the proceedings in which the motion was made. As this question will not arise upon another trial, it is unnecessary that a further discussion here shall be had.

The second proposition, as above stated, deals with the alleged prejudicial conduct of the court towards the counsel for defendant pending the trial, in which it is insisted that the alleged conduct complained of tended to bring defendant's counsel into contempt before the jury. Occurrences of this character, as disclosed by the record, are very regrettable and are to be deplored. They could be obviated if all those connected with the trial would be careful to accord to every one, also so connected, the high degree of courtesy and respect expected, or desired, or demanded by himself. An attorney at law is an officer of the court, and as such is under the duty to deport himself with dignity and circumspection, and upon all occasions to manifest and exhibit a marked respect for the court in which he practices, and for the judge thereof, as well as for all officers of court, parties and their witnesses, and for the juries in attendance. The statutory requirement in this connection is that an attorney must maintain due respect to courts of justice and judicial officers. Code 1907, § 2985, subd. 2. In return, he is entitled to similar treatment from the trial judge, and most certainly to the extent that the interests of his client will not be prejudiced.

The trial judge, as a natural consequence of his position and the many duties devolving upon him, is necessarily vested with much discretion in the conduct of the trial of causes, and unless it clearly appears that there has been an abuse of this discretion, appellate courts will not interfere to control such discretion, but will presume that one occupying so important a position as that of circuit judge will accord to all litigants in his court the fair and impartial trial provided for in the Constitution of this state. That a trial judge wields a great influence upon the jury cannot be questioned, for it is their duty to follow his instructions as to the law. So, whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of another, or uses language which tends to bring an attorney into contempt before the jury, or uses any language or makes any intimation which tends to prejudice them, he commits an error of law, which would, of necessity, effect a reversal of the judgment and a remandment of the cause. In the instant case we are not prepared to say that the alleged injurious language of the court addressed to appellant's counsel was of the character to prejudice the attorney before the jury or to injuriously affect the substantial rights of the defendant. However, we are of the opinion that the trial court should have allowed defendant's counsel full opportunity to make...