Langley v. State

• Decision Date: 22 May 1945
• Docket Number: 5 Div. 222.
• Citation: 22 So.2d 920,32 Ala.App. 163
• Parties: LANGLEY v. STATE.
• Court: Alabama Court of Appeals

22 So.2d 920

32 Ala.App. 163

LANGLEY v. STATE.

5 Div. 222.

Alabama Court of Appeals

May 22, 1945

Rehearing Denied June 19, 1945.

Paul J. Hooton, of Roanoke, and Jacob A Walker, of Opelika, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen., for the State.

RICE Judge.

Appellant was out on trial under an indictment charging him with the offense of murder in the first degree, for the killing of Bob Leach. He was convicted of the offense of manslaughter in the first degree and his punishment fixed at imprisonment in the penitentiary for the term of nine years. He duly filed a 'motion for a new trial' which was overruled, with exception reserved. From the judgment of conviction rendered on the verdict of the jury, and from the judgment overruling his 'motion for a new trial,' he brings this appeal.

We have given the evidence in the case the most careful and critical examination of which we were capable. We do not believe it would be helpful for us to undertake to narrate it in detail.

We will simply say that appellant admitted that he shot with a pistol said Bob Leach. And that the evidence shows without peradventure that deceased died as a result of said shot.

Appellant sought to be justified by reason of self-defense--as that term was fully defined to the jury.

We are disposed to use--mutatis mutandis--as being in every respect applicable here, language which we used in our opinion in the case of Coates v. State, 29 Ala.App. 616, 199 So. 830, viz.:

'It was shown, we may say without dispute, that he killed Bob Leach by shooting him with a pistol--which we know to be a deadly weapon.

'As we said in the opinion in the case of Grays v. State, 28 Ala.App. 394, 185 So. 191, we repeat, here: 'The evidence in this case is, without dispute, that the homicide was committed by the use of a deadly weapon; where such is the case, the proof of the use of a deadly weapon raises the presumption of malice, and throws upon the defendant the burden of repelling the presumption, unless the evidence which proves the killing shows, also, that it was done without malice.'

'Or, as the Supreme Court said in the case of Cooley v. State, 233 Ala. 407, 171 So. 725, 727: 'Defendant's testimony admits an intentional killing with a deadly weapon. The burden was then upon him to prove * * * self-defense * * *. And, though the evidence of defendant may have been without dispute, its credibility was for the jury * * *. They were not bound to accept it as true * * *. Indeed, they might well have rejected it in their discretion. Since they did so, their verdict was well supported.'

'The above quotations, especially the one from Cooley v. State, which controls us (Code 1940, Tit. 13, § 95), seem conclusive of the principal question argued here by appellant's distinguished counsel as a reason for the reversal of the judgment of conviction.

'It is true that defendant was the only eyewitness to the killing of deceased--at least after deceased's eyes were closed. And that his testimony made out a perfect case of self-defense. And that unless the testimony of defendant is given some degree of credibility the circumstances of the killing are wholly speculative. But the jury had the right to disbelieve his evidence. And the presumption which arose from the 'intentional killing with a deadly weapon'--abundantly shown--was sufficient to support the verdict returned. Cooley v. State, supra.

'We are not unimpressed with the forceful argument of appellant's counsel (though we do not now recall that counsel in the instant case made the argument) to the effect that the circumstances here are comparable to those in the case of McDowell v. State, 238 Ala. 482, 191 So. 894, 899, wherein four Justices of our Supreme Court finally concluded that the judgment ought to be reversed because the trial court refused the defendant a new trial, in turn because the verdict was 'contrary to the great weight of the evidence.' But the things which impressed the said four Justices in the McDowell case are not present, here. And we are unable to say that the trial court, who saw and heard the witnesses, and thus had an advantage over us, (See, we interpolate, Kent v. Lindsey, 30 Ala.App. 582, 10 So.2d 54) erred in refusing to set aside the verdict of the jury'--this because it was 'contrary to the great weight of the evidence.'

And see Heath v. State, 30 Ala.App. 416, 7 So.2d 579, certiorari denied Id. 242 Ala. 632, 7 So.2d 580.

We believe we ought to say, in view of the unusually persuasive argument advanced here as to why--in the light of the undisputed testimony of the appellant--and his being shown to possess an exemplary character and reputation--the verdict of the jury should have been set aside as being against the great weight of the evidence, that it should be kept steadily in mind that our views are controlled by the fact that we are reviewing the action of the trial court. And that action, here, is bolstered by the presumption that obtains. Kent v. Lindsey, supra. We will not, we are sure, be understood as saying that if we had been sitting as the nisi prius judge we would not have set aside the verdict on the ground mentioned above.

But the judgment of conviction must be reversed, because of errors occurring during the course of the trial, and afterwards.

Counsel was employed to assist the Solicitor in the prosecution of the appellant.

And we have said above that appellant proved--without dispute--an excellent character and reputation.

One of the large number of witnesses testifying to the good character of the appellant was the Probate Judge of the County.

In the opening argument to the jury on behalf of the State, the specially employed counsel, above, stated to the jury as follows, viz.: 'The defendant has offered as a character witness in his behalf Judge Maddox Brittain, the Judge of Probate of this County. The fact is on the preliminary trial of this case Judge Brittain committed the defendant to jail without bail.'

No evidence had been offered on the trial before the jury that Judge Brittain had committed appellant to jail without bail on the preliminary trial of his case. And, indeed, we think none could have been, legally, offered. See Lee et al. v. State, 20 Ala.App. 334, 101 So. 907.

Appellant's counsel promptly interposed objection to the argument as quoted above; whereupon the court sustained the objection and told the jury 'not to consider the statement'--nothing more.

But we believe irreparable harm had been done to appellant's cause.

The Probate Judge is generally regarded as being the leading citizen of the County; certainly one of the leading citizens. And the remarks, quoted, of the said counsel representing the State, above, would, certainly, in our opinion, seriously impair, if not vitiate and destroy, the weight of the Probate Judge's testimony on behalf of the appellant in this case. The more is this true when the words were addressed to a lay jury, unfamiliar with the technical considerations which operated upon said Probate Judge's actions when sitting as a committing Magistrate.

When the words quoted were spoken; when the extraneous and inadmissible information therein contained was imparted to the jury; the harm was done. And, in our opinion, nothing that the trial court could have done would have repaired the...