McCray v. State, 1 Div. 585

• Court: Supreme Court of Alabama
• Writing for the Court: CLAYTON
• Citation: 74 So.2d 491,261 Ala. 275
• Parties: John H. McCRAY v. STATE of Alabama.
• Docket Number: 1 Div. 585
• Decision Date: 30 June 1954

Page 491

74 So.2d 491 261 Ala. 275 John H. McCRAY
v.
STATE of Alabama. 1 Div. 585. Supreme Court of Alabama. June 30, 1954.

[261 Ala. 276] Harry Seale and W. A. Marsal, Mobile, for petitioner.

Si Garrett, Atty. Gen., and Maury D. Smith, Asst. Atty. Gen., opposed.

CLAYTON, Justice.

Petitioner, John H. McCray, Jr., insists upon three propositions for reversal of the judgment of conviction against him for the offense of manslaughter. First, that the verdict was contrary to the overwhelming weight of the evidence; second, certain remarks of the trial judge to the jury during the course of its deliberation, relative to the matter of possible parole for defendant; and third, the refusal to defendant of his requested charge No. 6.

Propositions numbered 1 and 3, are correctly and adequately treated in the opinion [261 Ala. 277] of the Court of Appeals and will not be further discussed here. Proposition 2, raised by petitioner, concerns remarks of the trial court made in response to questions by the jury, which are delineated by the reporter in his statement of the case. Most of our cases, which are most closely associated with the case at bar, relate to remarks in argument to the jury by counsel for the state. However, in the case of Burch v. State, 32 Ala.App. 529, 530-531, 29 So.2d 422, 423 our Court of Appeals, through its Presiding Judge Bricken, in considering the statement by the solicitor in his argument to the jury that "Counsel for the defendant are trying to make monkeys out of this jury, and they are laughing up their sleeves at you," said:

'Certainly, when the trial court, by its action in overruling the objection interposed, the court manifested its approval of the uttered words and gave its full endorsement thereof as being true. The statement, whether so intended or not, was insulting and otherwise objectionable and the court erred to a reversal in not taking prompt and decisive action to eradicate the statement instead of adding his approval thereof to the effect that such statement in the opinion of the court was true.'

In the case of Boyle v. State, 229 Ala. 212, 154 So. 575, 587, the solicitor, in his argument, stated that the effect of finding defendant not guilty by reason of insanity would be to "put him upon the ground". Defendant's objection was overruled. This court, in considering this matter, had this to say:

'Clearly the sole question in this connection was whether defendant was 'not guilty by reason of insanity.'

'What might happen if he were sent to the insane asylum, instead of the penitentiary, should not have been thrown into the case to influence the verdict. The action of the trial court was an invitation to the jury to consider such contingency.'

In the case of Peterson v. State, 231 Ala. 625, 166 So. 20, 23, the solicitor in his argument to the jury said he hoped the jury would fix it so that this man would not get off with any penitentiary sentence by the jury returning the death verdict, and that if they did sentence him to the penitentiary a mushy parole board would let him out in a little while, and that it had been his experience that murderers did not stay there long; * * * that besides all this he could be pardoned and released from the penitentiary, and that he wanted the jury to fix it, by their verdict, that this man could never escape or get out of the penitentiary by giving him the death sentence. This court said: 'It is true the arguments of the solicitor were highly improper and should not have been made; * * *.'

Likewise, in Oliver v. State, 232 Ala. 5, 9, 166 So. 615, 617, it was held:

Page 493

'The argument of the solicitor that there was a Governor with pardoning power was likewise improper and excluded. These remarks of the state's counsel were of the class of improper arguments which may be remedied or their evil effects eradicated by instructions of the court. Anderson v. State, 209 Ala. 36, 95 So. 171; Bachelor v. State, 216 Ala. 356, 113 So. 67; Peterson v. State, [231 Ala. 625], 166 So. 20.'

The same holding was made in Cobb v. State, 248 Ala. 548, 28 So.2d 713, following the holding in Pilley v. State, 247 Ala. 523, 25 So.2d 57, 60, pertinent parts of which opinion are:

'It was improper for the assistant solicitor in his argument to the jury to state that if the jury returned a verdict of murder in the first drgree and fixed punishment at death that the appellant would automatically get his trial reviewed on appeal. The only effect of this argument would be to lead the jury into the mistaken belief that their findings on the facts could be reviewed by a higher tribunal and thereby lessen the sense of responsibility resting on them. * * *

[261 Ala. 278] 'But we do not think that this case should be reversed because of such arguments, for they are of that class of improper arguments which may be remedied or their evil effects eradicated by instructions of the court, and the trial court, after objections were interposed by appellant, strongly instructed the jury that they should decide the case on the evidence presented to them and should not be concerned with any future action which might be taken by appellate courts or pardoning authorities. Oliver v. State, supra; Bachelor v. State, Peterson v. State, supra.'

In the case of Moulton v. State, 199 Ala. 411, 415, 74 So. 454, 456, the trial court in its charge to the jury said:

'* * * 'For the first time in the history of this court since the appointment of an official stenographer so far as I am advised, the judge of the court has been requested to render his charge to the jury in writing. This is a privilege which the law gives, but whether I will be...