Milton v. State

• Decision Date: 07 May 1925
• Docket Number: 6 Div. 339
• Citation: 105 So. 209,213 Ala. 449
• Parties: MILTON v. STATE.
• Court: Alabama Supreme Court

105 So. 209

213 Ala. 449

MILTON v. STATE.

6 Div. 339

Supreme Court of Alabama

May 7, 1925

Rehearing Denied June 25, 1925

Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.

John Milton, alias Williams, alias Wilson, was convicted of murder in the first degree, and he appeals. Affirmed.

Phil A Tharp and Frank Bainbridge, both of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Jim Davis, Sol., and Willard Drake Asst. Sol., both of Birmingham, for the State.

THOMAS J.

A proper predicate was laid for the introduction of the confession of the defendant. Stone v. State, 208 Ala. 50, 93 So. 706; Curry v. State, 203 Ala. 239 82 So. 489; Fincher v. State, 211 Ala. 388, 100 So 657.

The crime for which the defendant was being tried was admitted to have been committed by some person and the defendant was in close proximity thereto at the time of the homicide. The only question of fact was the identity of this defendant with the commission of that crime. He was a convict and on that day was a "trusty," who escaped at or a short time before the time of the homicide, and was arrested and brought back from Ohio. It was while being returned to Birmingham under arrest that he made confession of the crime to the officers testifying on behalf of the state.

The solicitor, in cross-examination of the defendant, said to him: "You say you were arrested in Ohio?" The defendant answered: "Yes, sir." After examination as to the place of the arrest in Ohio, the solicitor then asked the defendant: "They arrested you up there for attacking a white woman, didn't they?" Before the question was answered objection was made and a motion for a continuance of the cause was predicated thereon. The court sustained the objection to the question, which was unanswered, and overruled the motion for "a continuance of the cause." Defendant reserved exception to this last ruling. Thereupon the court instructed the jury as follows:

"The question asked, gentlemen, by the solicitor, I exclude from your consideration, and ask that you do not even consider that the question was asked. Of course, gentlemen, questions so asked are submitted first to the court to say whether they are legitimate questions or not. The court rules that this is an illegitimate question, and should not be asked, and excludes it from your consideration, and asks you to pay no attention whatsoever to the question as asked. Do not consider it as having any weight or bearing upon the jury in this case. Rid your mind of it in every way possible. Decide the issues of the case solely upon the evidence and the evidence alone, and do not allow yourselves to be influenced or prejudiced or in any way biased by any question asked. The questions asked, gentlemen, which are without legitimate issues of the case, when the court excludes them, should have no bearing whatsoever upon the case nor any weight in determining the issues of the case."

Counsel for defendant then said, in the nature of a reply to this statement by the presiding judge:

"Now, in order that I may get the record straight on it, I wish to renew my motion for a continuance on account of that improper and prejudicial statement of the solicitor. I didn't object to it, because I did not feel as though any statement that the court might make to the jury could take that poison out of this case, and I renew my motion now for a continuance."

To which the court replied, "Well, I will overrule that," and again an exception was reserved by defendant.

Counsel for the defense say, in argument, that the trial court did all that could be done "to eradicate it from the minds of the jury"; and the question is propounded to this court by counsel whether the jury could, "under any circumstances, forget so ruinous and poisonous a thing as this." The cases from this court of Tannehill v. State, 159 Ala. 51, 48 So. 662, and Moulton v. State, 199 Ala. 411, 416, 74 So. 454, are cited. In the last case there were exceptions taken to remarks of counsel and those of the court; and it was held the remarks of counsel and those of the court in the oral charge created a "general atmosphere" that was prejudicial and ineradicable and constituted reversible error. The exception in the Tannehill Case was likewise taken to an aggravated and prejudicial argument of counsel made as an appeal to race prejudice, and which was held to be error.

The question challenged as being within the influence of said cases was propounded by way of cross-examination of the defendant, was promptly checked by the court, and immediate and explicit instructions were given to the jury to disregard the same. In the language of B.R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543, "each case of this character must be decided upon its own merits," there is "no horizontal rule" that may be applied, and "much will depend upon the issues, the parties, and the general atmosphere of the particular case." Standridge v. Martin, 203 Ala. 486, 84 So. 266. The test is, is it probably beyond the reach of timely and proper remedial action by the court? We are of opinion, and so hold, that there was no reversible error in declining defendant's motion for a continuance because of the attempted cross-examination in question.

The question propounded by the state to the witness Dial, "I will ask you if, a few days after this defendant was brought back, in the county jail, you didn't have a conversation with him in regard to him coming by your house on a horse, and if he didn't say to you that he did come by there, but that he had on overalls and a blue shirt, and had passed your girls down the road," was pursuant to the predicate theretofore laid for impeachment of defendant, as a witness in his own behalf, by said witness Dial, as to the time, place, and matter in question, denied by defendant.

Counsel for appel...