Houlton v. State

• Decision Date: 03 October 1950
• Docket Number: 3 Div. 915
• Citation: 48 So.2d 11,35 Ala.App. 444
• Parties: HOULTON v. STATE.
• Court: Alabama Court of Appeals

Page 11

48 So.2d 11

35 Ala.App. 444

HOULTON v. STATE.

3 Div. 915.

Court of Appeals of Alabama.

Oct. 3, 1950.

Chas. M. Pinkston and Norman T. Spann, of Montgomery, for appellant.

A. A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.

The following charges were refused to defendant.

'3. The Court charges you, Gentlemen of the Jury, if there is in the minds of any juror a reasonable supposition of the defendant's innocence, growing out of the evidence in this case, you should not convict the defendant.

'14. I charge you, Gentlemen of the jury, that if there is one single fact proven to the satisfaction of the jury which is inconsistent with the defendant's guilt, the jury should acquit him.'

HARWOOD, Judge.

This appellant stands convicted of murder in the second degree under an indictment charging him with murder in the first degree. The victim was appellant's young stepson, and died as a result of poisoning.

The evidence submitted by the State was, in our opinion, wholly sufficient to support the verdict and judgment rendered.

This court certified to the Supreme Court the following question in this case: 'On the indictment hereinabove set out, was the jury authorized to find the defendant guilty of a lesser offense than murder in the first degree?'

The Supreme Court has answered this question in the affirmative, and thus disposed of one of the important questions involved in this appeal. See 48 So.2d 7.

The only other point, or points of sufficient import to warrant discussion involve the conduct of the Solicitor in his argument to the jury, and his cross examination of the appellant.

This argument has been set out in full in the record. We will extract only those parts urged by counsel as prejudicial, or which we consider material to this decision.

It is inferable from the record that Mr. Laudon Williams had testified as a witness in a previous trial of this case, but not in the present trial.

The record shows the following statements during the Solicitor's argument:

'When this case first broke, late in the afternoon, when we were in the trial of this case, Laudon Williams, of the Montgomery Apothecary, came into this court house, and called Mr. Hinson off and told him about it.

'Mr. Pinkston: We object to that and ask to exclude it from the jury.

'The Court: Yes,--that isn't evidence in the case.

'The Solicitor: What is that?

'Mr. Pinkston: You spoke about Laudon Williams, what you said.

'The Solicitor: You object about that?

'Mr. Pinkston: Yes, I do.

'Mr. Spann: We move to exclude it.

'The Court: Yes,--that isn't evidence in the case, what the Solicitor said about that witness, gentleman, coming into this court house; It is only what has been testified in this case that you consider.

'Mr. Pinkston: He has told the jury that this man came to the Solicitor and made a certain statement,--he knows that is improper.

'The Solicitor: I don't know anything of the kind.

'Mr. Pinkston: I am making my objection to the Court; he knows it is made wholly to prejudice the jury; he knows it is improper; we insist on a fair trial; after the Solicitor making such a statement, which cannot be based on any evidence in the case, we object to that and we move for a mistrial at this time.

'The Court: I overrule your motion.

'Mr. Pinkston: We except.

'The Court: I will tell the jury not to consider that testimony, it is not testimony in this trial; but I will say in deference to his remarks that Mr. Pinkston commented that Laudon Williams didn't say so and so, that was in reply to that,--if he had known anything he would have reported it to the Court.

'Mr. Pinkston: I am not guilty of that, Judge.

'The Solicitor: I don't want to prejudice this jury. God knows I don't. I have tried this case three times, and put every ounce of energy I had in this case, because I am convinced from the evidence that this man poisoned that child. Laudon Williams testified in the trial of this case, I know,----

'Mr. Pinston: We object to that. Is that proper argument? We renew our objection to the Solicitor's statement.

'The Solicitor: Didn't he testify?

'The Court: He testified (once), but it is not in evidence in this case.

'Mr. Spann: We do object to it, and we renew our motion and objection, and ask the Court to enter a mistrial, on his argument to the jury that a witness who has not and did not testify in this case made a certain statement, which was made to the jury, and he made it, apparently to prejudice the jury. It leads the jury to believe that he made such a statement; and the Solicitor knows that Laudon Williams in this case did not testify. According to the testimony of another witness in this case, he sold the poison, and he knows that is one of the weak links in the testimony, and he is trying to bolster it up by a statement made to this jury about which there is no testimony given, and we respectfully submit to the Court that it is prejudicial to our client. We move for a mistrial.

'The Court: I overrule your motion.

'Mr. Pinkston: We except.

'The Court: All right.

'The Solicitor: I would give my right arm rather than to make a statement that would do him any damage before the jury. I have nothing in the world against that man, and I don't want to make any statement that would prejudice this jury. That is not my intention. I know Grover Pilgreen is still working for Mr. Williams. He has not been fired for giving his testimony in this case, and I know that the defendant swore to an untruth, according to the police record in his attempt to convey the information that Grover Pilgreen had a former police record. And I know that Charley Pinkston in his cross examination tried to construe the fact that Grover Pilgreen had drunk whiskey. What did that have to do with the case. You drink whiskey, I don't know, but I don't want even----

'Mr. Pinkston: I don't drink whiskey; it has been some time since I had a drink.

'The Solicitor: You may not drink it; it is all right; I withdraw that.

'The Solicitor: Grover Pilgreen is still working for Laudon Williams. Grover Pilgreen appeared in this court, forced by an attachment, we took him out of his home, he declined to come.

'The Court: That is evidential. (Objection and motion to exclude.)

'The Solicitor: He was brought in.

'The Court: It is in the evidence, I overrule the motion.

'The Solicitor: He was brought into this Court. He didn't want to testify against Houlton. He didn't want to testify against him. He had nothing against him, and he has got nothing against him now. All he was doing was testifying in response to the process of this court.'

It is to be noted that in the above argument the extent of the reference by the Solicitor to Laudon Williams was that Mr. Williams had 'called Mr. Hinson off and told him about it.' No details of what Mr. Williams may have told Mr. Hinson were brought out by the Solicitor. The court sustained the defendant's objections and instructed the jury that such statement was not evidence. It is further to be noted that the court stated that the argument was in reply to argument of defense counsel. The defense counsel's argument is not set forth in the record. We cannot therefore determine whether the argument was a reply in kind or not in this state of the record, other than such light as is thrown thereon by the court's statement to that effect.

Be that as it may, in view of the uncertainty of any harm that may have resulted from the Solicitor's mere statement that Mr. Williams had told Mr. Hinson about the case, with no details as to what Mr. Williams said being brought out, and further in view of the court's action in sustaining defendant's objections to the Solicitor's argument, and instructing the jury that same was not to be considered, it is our conclusion that any harm that may have been occasioned is so speculative as to prohibit a reversal of this cause because of the court's ruling denying defendant's motion for a mistrial because of this portion of the Solicitor's argument. A mistrial will not be entered on motion of the defendant where the court has sustained his objections to alleged improper argument and instructed the jury not to consider same, unless it clearly appears that the defendant's rights have been so prejudiced as to render a fair trial a matter of grave doubt. We cannot rationally say that the matters above considered create such doubt.

Appellant's able counsel further urges that this cause should be reversed because of the Solicitor's conduct during the cross examination of the appellant, and his method of such examination.

In this respect the record shows that twice during the examination defense counsel objected to the Solicitor standing near the appellant during his cross examination and shaking his finger at the defendant. In each instance the court sustained the objection and admonished the Solicitor to desist in such action, which apparently was done.

Several general objections unsupported by any grounds, were interposed to questions propounded by the Solicitor to the appellant during this examination. In each instance the court sustained these objections. It is our opinion that none of these questions asked by the Solicitor were, in view of the court's action in sustaining the objections interposed to them, of sufficiently prejudicial tendencies to justify a reversal of this cause. Long v. State, 33 Ala.App. 463, 36 So.2d 133, certiorari denied 250 Ala. 711, 36 So.2d 136; Pate v. State, 32 Ala.App. 365, 26 So.2d 214; Cauley v. State, 33 Ala.App. 557, 36 So.2d 347, certiorari denied 251 Ala. 163, 36 So.2d 354; Head v. State, Ala.App., 44 So.2d 441; Walden v. State, 34 Ala.App. 29, 36 So.2d 556, certiorari denied 251 Ala. 144, 36 So.2d 558; Corsbie v. Poore, 29 Ala.App. 487, 198 So. 268, certiorari denied 240 Ala. 207, 198 So. 272.

The trial judge gave a full and clear oral charge to the jury. In addition he gave some fourteen written...