Harris v. State

• Decision Date: 29 June 1948
• Docket Number: 8 Div. 620.
• Citation: 36 So.2d 254,33 Ala.App. 623
• Parties: HARRIS v. STATE.
• Court: Alabama Court of Appeals

36 So.2d 254

33 Ala.App. 623

HARRIS v. STATE.

8 Div. 620.

Alabama Court of Appeals

June 29, 1948

Thos C. Pettus, of Moulton, for appellant.

A A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty Gen., for the State.

HARWOOD Judge.

This appellant was by a jury found guilty of manslaughter in the first degree. The indictment charged murder in the second degree. Imprisonment in the penitentiary for a term of three years was the penalty duly imposed.

In the trial below a motion to quash the indictment was filed. Demurrers filed by the state to this motion to quash were sustained. In our opinion no error can be attached to the lower court's ruling in this premise because of the general and nonspecific character of the grounds assigned in support of the motion.

The victim around whom this case centers came to his death on a highway in Lawrence County. Circumstantial evidence presented by the state tended to establish the appellant's criminal agency in causing the death, and in our opinion was sufficient, if believed by the jury under the required rule, to justify the verdict rendered. No error therefore resulted in the court's action in refusing appellant's written request for the affirmative charge, nor in denying his motion for a new trial on the grounds that the evidence was insufficient to support the verdict.

We have refrained from setting out the evidence for in our opinion a reversal of this cause is dictated because of remarks of counsel for the state in their argument to the jury, in light of the fact that appellant did not testify in the trial below.

The record shows that in the opening argument to the jury the special prosecutor made the following statement:

'That there has no excuse been presented for him for his running over that man down there on the highway.'

Appellant's objection to this remark being overruled, exception was duly reserved.

The record further shows that in his closing argument the solicitor stated to the jury:

'He took the truck down there and wanted to see about Clyde Jeffreys, but he don't want you to be informed on that.'

Again exception was reserved to the court's action overruling the objection to this statement.

Still later in his argument the solicitor stated to the jury:

'We asked him in court and he hasn't explained it.' (Italics ours.)

In overruling appellant's objection to this last statement of the solicitor the court stated he would 'instruct the jury on matters pertaining to that' during his oral charge. Exception to this last ruling was duly reserved.

In this connection the third paragraph of the court's oral charge, which is the only part of said charge tending to eradicate the effect of the above statements, is as follows:

'The defendant has come into court and has pleaded not guilty, as he has a right to do. The law of this state is when a charge is made, when a defendant is charged with an offense, he has a right to say, 'I am not guilty,' and he has a right to content himself and say no more until the State has proved to you beyond a reasonable doubt from the evidence, that he is guilty of the charge specifically written in that indictment, or some other offense which is included automatically in that charge. I will explain that to you.'

The appellate courts of this state have with utmost diligence and consistency enforced both in letter and spirit the provisions of Section 305, Title 15, Code of Alabama 1940, that 'On the trial of all indictments, complaints, or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness; and his failure to make such request shall not create any presumption against him, nor be the subject of comment by counsel.'

In Everage v. State, Ala.App., 33 So.2d 23, 24, Carr, J., has set out remarks of counsel that have been disapproved by the courts of this state because of their direct, or indirect and inferential, reference to the failure of the defendant to testify. The pertinent portion of the Everage opinion is as follows:

'During his argument to the jury the solicitor said: 'Gentlemen of the jury, there is not much to this case. The defendant offers no testimony here but character testimony.' The trial judge overruled appellant's objection to this statement, and the matter is properly presented for review.

'The defendant did not testify in his own behalf.

'It appears to us, and we so hold, that the statement of the solicitor was a comment on the failure of the defendant to testify. Clearly, the assertion is susceptible of this interpretion.

'Many cases in which this question is involved have found their way into our appellate courts. In this jurisdiction it is firmly settled, long maintained, and well recognized that a person on trial for a criminal offense shall only at his request become a witness in the cause and his failure or refusal to do so shall not create any presumption against his innocence nor can his declination to testify be made the subject of comment by counsel in argument to the jury. Title 15, Sec. 305, Code 1940.

'In the following cases the quoted statements were held to violate this rule: Baker v. State, 122 Ala. 1, 26 So. 194, 196. 'The defendant did not deny having left his sick wife, and fleeing the country' and 'the defendant did not deny that he went to Elijah Langford's house, and made the confession.' May v. State, 209 Ala. 72, 95 So. 279, 280. 'If he had an excuse, why didn't he tell you about it? If he has a reason, why didn't he give it?'...