Handley v. State

• Decision Date: 19 November 1925
• Docket Number: 6 Div. 526
• Citation: 106 So. 692,214 Ala. 172
• Parties: HANDLEY v. STATE.
• Court: Alabama Supreme Court

106 So. 692

214 Ala. 172

HANDLEY v. STATE.

6 Div. 526

Supreme Court of Alabama

November 19, 1925

Rehearing Denied Jan. 21, 1926

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Emma Handley, alias Emma Johnson, was convicted of murder in the second degree, and she appeals. Affirmed.

Mathews & Mathews, of Bessemer, for appellant.

Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen for the State.

BOULDIN J.

Emma Hadley, alias Emma Johnson, was indicted for the murder of her husband, James Johnson, and convicted of murder in the second degree. The case was here on former appeal. Handley v. State, 212 Ala. 347, 102 So. 628. An outline of the evidence is there given.

In the opening statement of the solicitor, referring to the dying declarations of deceased proposed to be offered in evidence, he said: "In that dying statement he said that this woman took part in the killing." Continuing, the solicitor further said: "He (this dead man) told Emma that she killed him or was responsible for his being killed." With assurances to the court that he expected the evidence to show what he had stated, the court overruled objections of defendant, and exceptions were reserved.

The office of an opening statement in advance of taking testimony is to acquaint the jury, under the guidance of the court, with the nature of the issues presented. This may include an outline of the evidence proposed to be offered. 1 Thompson on Trials, § 261.

"No Right to Rehearse Facts Which Cannot be Proved.--Counsel has no right, in his opening statement, to rehearse before the jury facts which he is not in a condition to prove. It is the jury of the judge to see that this rule is not overstepped, and therefore he has a right to ask the counsel if he means to prove what he has stated. As was well said by Mr. Justice Graves: 'The decisions unite in substantially denying the right to get before the jury a detail of the testimony expected to be offered, and especially any not positively entitled to be introduced, and deny the right to use it as a cover for any topics not fairy pertinent.' " 1 Thompson on Trials, § 263.

We approve the above as a sound rule for the guidance of prosecuting officers in state cases. A dying statement of the deceased was reduced to writing and offered in evidence on the former trial. Certain statements were then declared subject to objection as mere conclusions of the witness. 212 Ala. 347, 102 So. 629.

It is insisted that the statements of the solicitor had the effect of bringing before the jury matters already condemned by the decision of this court. On the second trial, the objectionable statements were eliminated. Thus corrected, the statement tended "to prove concert of action between defendant and Hillman, leading immediately and without break up to the fact of the killing." But these conclusions were inferential from circumstances stated. The evidence does not disclose the categorical statement by the deceased that defendant "took part in the killing," or that he told "Emma that she killed him," etc. The statements of the solicitor were too broad.

Does this require a reversal of the case? As often said, we are called upon to review the errors of the trial court, and not the errors of others. The party must present the matters complained of to the trial court in such manner as will put the court in error in failing to sustain his objections. In dealing with an opening statement of facts to be proven, the court may consider whether the proposed proof is illegal, and may question counsel as to whether such proof will be forthcoming.

The proposed evidence here was not per se illegal. Kindred statements were held illegal on the former hearing, because the context showed they were mere conclusions of the witness and not of known facts. In such case we think it the proper rule to point out wherein the proposed statement is illegal, or to call the matter to the attention of the court after the evidence is in, and have the objectionable statements then excluded or withdrawn. If it appears the injury cannot be properly eradicated, the matter should be presented in the motion for new trial. Failure to prove a particular thing, proposed in good faith, will not ordinarily work a reversal. People v. Gleason, 127 Cal. 323, 57 P. 592.

Special counsel may appear in the prosecution as an assistant to the solicitor and with the consent of the court. The management of the case remains with the official representative of the state, in whose name the special counsel appears. The consent of the state is all the authority needed by special counsel; hence a motion by defendant to require special counsel to show his authority is properly overruled. Shelton v. State, 1 Stew. & P. 209; Johnson v. State, 13 Ala.App. 140, 69 So. 396; Jones v. State, 16 Ala.App. 154, 75 So. 830.

"In the absence of statute, the state cannot be compelled to disclose the names of private prosecutors or informers, especially where it is not shown that defendant will be prejudiced by the want of such information." 16 C.J. 801; State v. Fortin, 106 Me. 382, 76 A. 890, 21 Ann.Cas. 454; Barkman v. State (Tex.Cr.App.) 52 S.W. 69.

The rule is founded upon the pubic policy that encourages the citizen to give aid in the detection and punishment of crime. He need not assume the role of a prosecutor, but, with the consent of the state authorities, render assistance in the name of the state. Moreover, bringing to the attention of the jury the names of those employing or paying special counsel may work an injustice to the state or to the defendant, as the case may be. Thus, if a popular subscription is raised to prosecute a man accused of crime, the publishing of the names of contributors might easily throw into the case a personal and popular influence highly injurious to the defendant. In the absence of some reason to the contrary, it is better that prosecutions proceed purely in the name of the state.

We can easily conceive of abuses arising from unknown or secret interests employing counsel to prosecute in the name of the state. The official representative of the state has the first duty to see...