Johnson v. State
| Citation | 133 So.2d 53,272 Ala. 633 |
| Decision Date | 22 June 1961 |
| Docket Number | 8 Div. 33 |
| Parties | Joe Henry JOHNSON v. STATE of Alabama. |
| Court | Supreme Court of Alabama |
David U. Patton and Bruce Sherrill, Athens, for appellant.
MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
Joe Henry Johnson was indicted, tried, and convicted of murder in the first degree in the Circuit Court of Limestone County, Alabama, and was sentenced to death by electrocution. He appeals under the automatic appeal statute, Title 15, §§ 382(1)-382(13), Cum.Supp. On the day appointed for his trial, appellant withdrew his plea of not guilty and entered a plea of guilty to the charge of murder in the first degree, and after hearing the evidence the jury returned a death verdict.
Error is sought to be rested on excerpts from the oral charge of the court to which no exception was reserved. The automatic appeal statute does not authorize such a review, no exception having been seasonably taken by appellant. Reedy v. State, 246 Ala. 363, 20 So.2d 528; Scott v. State, 247 Ala. 62, 22 So.2d 529; Haygood v. State, 252 Ala. 3, 38 So.2d 593; Byrd v. State, 257 Ala. 100, 57 So.2d 388; and Walker v. State, 269 Ala. 555, 114 So.2d 402.
Charge No. 4, which concerned voluntary drunkenness, was refused without error, if for no other reason, because the principle of law sought to be expressed was adequately covered by given written charge No. 5, which correctly stated the controlling principle of law. Helms v. State, 254 Ala. 14, 19, 47 So.2d 276, 281.
Appellant argues as error to reverse the action of the trial court in overruling the appellant's objections to certain remarks of the solicitor in his closing argument. The general rule is that improper argument of counsel is not ground for a new trial or the subject of review on appeal unless there is due objection by counsel or a motion to exclude, a ruling thereon by the court, an exception thereto, or a refusal of the court to make a ruling. Washington v. State, 259 Ala. 104, 65 So.2d 704; Anderson v. State, 209 Ala. 36, 95 So. 171.
The only exception to the foregoing rule is where the argument is so greatly prejudicial that its harmful effect is viewed as ineradicable, it may be made a ground for a motion for a new trial. Washington v. State, supra.
These rules prevail even under the automatic appeal statute. Only review of rulings on trial with respect to matters of evidence are within the scope of the statute obviating the necessity of interposing seasonable objection. Broadway v. State, 257 Ala. 414, 60 So.2d 701.
Following is the argument of the solicitor and objections with exceptions made by appellant's counsel as shown by the record:
'Mr. Sherrill [attorney for defendant] interposed an objection, in behalf of the defendant, to the statement of Mr. Johnson [solicitor], substantially as follows:
"He admit and tells you the way he killed the deceased, Dicie Body.'
'As grounds for said objection, Mr. Sherrill stated: 'On the ground that the defendant's [sic] didn't take the witness stand in this case, and such statement by the Solicitor in the summation to the jury is prejudicial to the rights of the defendant, that no inference be taken from his failure to take the witness stand.
'The Court: Objection overruled.
'Mr. Sherrill: We reserve an exception.'
Appellant contends, as is seen from the objection, that the argument of the solicitor was a direct and improper reference to his failure to testify, and therefore in violation of § 305, Title 15, Code 1940. The contention is without merit. The statement was merely a comment by the solicitor upon the evidence admitted during trial and not an unfavorable allusion to the appellant's silence. It was merely a statement of what the defendant had stated in his confession. The statute is, of course, designed to prevent the creation of any unfavorable inference from the accused's silence, but it does not abrogate the right of State's counsel to comment on legitimate inferences of the evidence. Arant v. State, 232 Ala. 275, 167 So. 540.
Appellant also argues as error to reverse the statement by the solicitor in his closing argument when he referred to 'the last capital case in Limestone County, a kindred case in Limestone County, that has been a deterring effect.' These remarks of the solicitor were, of course, improper. However, the court sustained the objection and promptly instructed the jury that such remarks were not legitimate argument and were not to be considered in their deliberation. After careful consideration we conclude that the remark was rendered innocuous by the action of the trial court in excluding the same and the accompanying instructions to the jury.
It is also contended that prejudicial error intervened when the solicitor argued to the jury: 'We want to file in the archives of Alabama, and give notice to this entire country, and to Alabama, and to the Southland that we are going to protect the womanhood of Alabama.' It is sometimes difficult to draw the line between allowable argument and improper statements in argument. The rule is that an attorney cannot be allowed to state anything as a fact as to which there is no evidence. Olden v. State, 176 Ala. 6, 11, 58 So. 307. But the solicitor may properly comment upon the evil generally of the crime which the law he is seeking to enforce intends to prevent. Dollar v. State, 99 Ala. 236, 13 So. 575. It is only when the statement is of a substantive, outside fact--stated as a fact--and which manifestly bears on a material inquiry before the jury, that the court can interfere and arrest discussion. Cross v. State, 68 Ala 476, 484; Sanders v. State, 260 Ala. 323, 70 So.2d 802. The remark of the solicitor did not fall within the ban of prejudicial argument but was merely arguendo of his opinion of the case and what the result of the jury verdict should be. The following cases also clearly sustain this view: Satterfield v. State, 212 Ala. 349, 102 So. 691; Frost v. State, 225 Ala. 232, 142 So. 427; Ex parte State ex rel. Davis, 210 Ala. 96, 97 So. 573; Davidson v. State, 211 Ala. 471, 100 So. 641; Lindsey v. State, 17 Ala.App. 670, 88 So. 189; and Witt v. State, 27 Ala.App. 409, 174 So. 794, certiorari denied 234 Ala. 391, 174 So. 795.
We now direct our attention to the claimed error when the court overruled the objection to remarks of the solicitor in examining the fifth group of prospective jurors on voir dire. The solicitor stated: The court thus ruled:
In Redus v. State, 243 Ala. 320, 9 So.2d 914, 921, referred to by the solicitor, the same solicitor asked: We there concluded that such examination by the solicitor was no abuse of the sound discretion of the trial court on voir dire examination of the panel from which the jury was selected. The remark objected to here was addressed to the fifth of seven groups of jurors examined on voir dire. Four of the twelve men of this group were excused. Of the eight remaining it is not apparent whether any one of them was selected to serve on the jury which tried the appellant. With the direct and forceful admonition of the trial court we do not think that any error intervened by the stated remark of the solicitor. Redus v. State, supra.
It is necessary to relate some of the facts--revolting in their details--in order to discuss other points which have been raised by diligent counsel representing the appellant. Miss Dicie Boyd, aged about 62 years, was discovered by a relative in the barn on the Boyd premises. She had been raped, murdered, denuded of her clothing, and severely beaten with some blunt instrument, which caused her death. On the same occasion her mother, Mrs. Rowena Boyd, aged about 89 years, was found in their home, also severely beaten and the house ransacked. Shortly after this discovery by the relative, appellant was arrested, and the State toxicologist's examination revealed that stains on his clothing were from human blood. He made two voluntary confessions in writing admitting the horrible crime, for which he was indicted.
Appellant argues that the court committed error in allowing witnesses to testify as regards the physical condition of Mrs. Rowena Boyd, the mother of the deceased, the condition of the residence, and its furnishings, etc. This evidence was admitted as within the res gestae of the rape-murder of Miss Dicie Boyd. The appellant argues that these two incidents were separate and distinct and that the physical condition of Mrs. Boyd and the house were entirely separate and distinct in time and place and not within the res gestae of the crime for which the appellant was being tried and should, therefore, have been excluded. The contention is without merit. In homicide cases all the surroundings and circumstances attending the killing, the declarations of the accused at and after the...
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