Mitchell v. State

• Decision Date: 18 April 1922
• Docket Number: 7 Div. 760. [*]
• Citation: 93 So. 46,18 Ala.App. 471
• Parties: MITCHELL v. STATE.
• Court: Alabama Court of Appeals

93 So. 46

18 Ala.App. 471

MITCHELL v. STATE.

7 Div. 760. ^[*]

Court of Appeals of Alabama

April 18, 1922

Rehearing Denied May 9, 1922.

Appeal from Circuit Court, Shelby County; W. L. Longshore, Judge.

Lopez Mitchell was indicted and convicted on a charge of assault to murder, and from the judgment he appeals. Affirmed.

Riddle & Ellis, of Columbiana, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

A part of the evidence introduced by the defendant was by showings for six absent witnesses. The testimony of these witnesses constituted a large part of the defendant's evidence tending to prove an alibi, which was his sole defense. The crime charged was of a most aggravating nature, calculated to impress the jury with the importance of a conviction, if the defendant was the guilty agent; and, while this fact should not unduly weigh in the deliberations of a jury considering a criminal case, it sometimes happens that the heinousness of an offense, too often, seems to demand a victim, which in practice if not in theory, shifts the burden of proving innocence to the defendant, and creates that "general atmosphere of the case," spoken of in Birmingham Ry., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80 Ann. Cas. 1916A, 543, and Moulton v. State, 199 Ala 411, 74 So. 454. The crime charged and proven was that of a cold-blooded attempted assassination, and if death had resulted, would have warranted and justified a verdict inflicting the extreme penalty of the law, and the only defense was an alibi. This defense, when proven to the satisfaction of the jury, is perfect, entirely exonerating the defendant from any connection with the crime, but, by reason of its nature, usually must be proven by friends and relatives of the defendant, whose testimony must be weighed and considered in the light of their interest in the case, and that such defense, when confined to the testimony of a few members of defendant's family, is of easy simulation. Hence it is highly important that the defendant have the benefit of such testimony as he offers, without any unfair or illegal burdens placed upon it, either by remarks of the court or unfair comments by counsel in argument. In the instant case the special counsel assisting in the prosecution, in the course of his remarks to the jury, made use of the following remarks, to which proper exceptions were taken and motions made to exclude:

Mr. Haynes: "I said that the law said that the jury have the right to observe the demeanor of the witnesses on the stand; that they could not see how they testified, and that they were not obliged to believe it to be true; and that they could disregard it if they wanted to."

"The jury has the right to disregard any testimony."

"Here are the witnesses that come on the stand; you see them, look at them in their faces, and know whether or not they are telling the truth. I tell you, gentlemen of the jury, that you have got that right; but, if you can take flimsy stuff like that (referring to the showings offered in evidence of defendant's absent witnesses), and turn a culprit loose, then tear down your courthouse-"

"Resuming, I say it is flimsy."

"Do you believe that old man is telling a lie; he comes here and faces you on the stand; he is not like these witnesses there (referring to the showings)."

"It is not like that gang right there (referring to the showings)."

"And when he must rely on showings, and showings alone, that paper testimony-"

"I say that they are relying on paper testimony in the face of testimony delivered on the witness stand."

The case of Cross v. State, 68 Ala. 476, is the leading authority in this state on questions involving the argument of counsel to juries, and in view of the many cases recently coming to the appellate courts, wherein the arguments of counsel are made the basis of assignments of error, we are led to believe that the opinion in that case, in recent years, has not been given that careful study the importance of the subject deserves, and we here take occasion to commend it to the profession. Since the publication of the opinion in that case, the courts generally have contended themselves with passing upon each exception as presented, adopting the rule, stated in Birmingham Ry., L. & P. Co. v Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543, and reaffirmed in Moulton v. State, 199 Ala. 411-414, 74 So. 454. Each case of this character must be decided upon its own merits. There is no horizontal rule by which these qualities (the prejudicial qualities of improper remarks in argument to the jury) can be ascertained in all cases. Much will depend upon the issues, the parties, and the general atmosphere of the case. Following this latter rule in connection with the general power of appellate courts to supervise the rulings of trial courts when proper exceptions are reserved, to the end that parties may have fair and impartial trials, free from...