Moulton v. State

• Decision Date: 15 February 1917
• Docket Number: 3 Div. 268
• Citation: 74 So. 454,199 Ala. 411
• Parties: MOULTON v. STATE.
• Court: Alabama Supreme Court

74 So. 454

199 Ala. 411

MOULTON v. STATE.

3 Div. 268

Supreme Court of Alabama

February 15, 1917

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Andrew Moulton, alias, was tried for murder, and he appeals. Reversed and remanded.

McClellan J., dissenting.

Rushton Williams & Crenshaw and Beckwith & Davison, all of Montgomery, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

PER CURIAM.

The brief for defendant, appellant, complains of other things that occurred during the trial, but only two exceptions were reserved, and upon these the fate of the appeal must depend.

1. Defendant was tried on June 13, 1916, for the murder of a white man whom he had killed on the first day of the same month. The assistant solicitor, in the course of his opening argument for the prosecution, said to the jury:

"If you do not hang this negro, you will have a similar crime in this county in six months."

Defendant's objection was overruled, whereupon, after duly excepting, he moved the court to instruct the jury to disregard the said remark; but the court overruled the motion, whereupon the defendant again duly and legally excepted. The assistant solicitor, in his argument to the jury, made also the following statement:

"Unless you hang this negro, our white people living out in the country won't be safe; to let such crimes go unpunished will cause riots in our land."

Defendant objected to this remark, and the court sustained the objection. The bill of exceptions then makes the following recital:

"During the closing argument of special counsel representing the state, said counsel made the following statement to the jury in reply to certain remarks made by defendant's counsel in his address to the jury: 'I hope to God the day will never come in this country when the heel of the Ethiopian will be on the neck of the Caucasian.' And further said that 'the defendant should not be convicted unless the jury was convinced to a moral certainty that the defendant was guilty.' "

It does not appear that defendant's counsel or the court took any notice of the remarks shown by the excerpt from the bill of exceptions stated last above. In his general oral charge to the jury the trial judge said to them:

"In the first place I charge you that the arguments of counsel are not evidence in this case, and should be considered by you merely as explaining the evidence so as to enable you to reach a fair and impartial verdict. I therefore, exclude from your consideration the several remarks made by the solicitor for the state in reference to the white and black races, as I do not think they will help you in the consideration of the evidence, although they are not of such a character as would tend to inflame or arouse the passions of any ordinarily intelligent person."

Dissociated from other peculiar features of the trial which, to use the language of the decision in Birmingham Railway v. Gonzalez, 183 Ala. 273, 287, 61 So. 80, 84 (Ann.Cas.1916A, 543), created "the general atmosphere of the case," the court would not be inclined to attach importance to that remark of the assistant solicitor as to which the trial court's ruling necessitated an exception by the defendant. In a different atmosphere the reference to defendant as a negro and the statement that, unless the defendant should be hanged, the county would have a similar crime in six months might be permitted to pass as belonging to that class of hasty or exaggerated statements of opinion, not facts, counsel often make in the heat of debate, which do not, and are not expected to, become factors in the formulation of the verdict, and which, while improper, are usually valued at their true worth. Cross v. State, 68 Ala. 484. But, looking to the whole record as it stood at the time when this exception was reserved, considering that in the evidence, even in that introduced by the prosecution, there was a strong tendency toward the establishment of a state of facts more favorable to defendant than that indicated by the jury's finding, considering the general conditions surrounding the trial, all which had before that appeared in this cause, and the menace of it all to a calm and dispassionate application of a just and humane law, the court is of opinion that the matter here brought into review involved an appeal to race prejudice, and should have been so recognized and treated at the time of the ruling upon it, and, not only so, but the innately evil capacity and tendency of the argument were in short order practically demonstrated by other breaches of the privilege of argument of an even more obviously harmful character. Authority for the holding that the judgment should be reversed on this exception may be found in Tannehill v. State, 159 Ala. 51, 48 So. 662, where many cases are cited; in James v. State, 170 Ala. 72, 54 So. 494, where the conviction was reversed because the solicitor had said to the jury that, "If the negro was taken out of court, there would not be much left"; in Simmons v. State (App.) 71 So. 979, where the Court of Appeals reversed the judgment because the solicitor had said, "You must deal with a negro in the light of the fact that he is a negro," etc., the court saying, "The fact that the defendant was of the negro race did not deprive him of the equal protection of the law, or necessarily discredit his testimony, and should not have been used in argument as a means of arraying the prejudices of the jury against him;" and in Taylor v. State, 50 Tex.Cr.R. 560, 100 S.W. 393; State v. Jones, 127 La. 694, 53 So. 959; State v. Lee, 130 La. 477, 58 So. 155; Hampton v. State, 88 Miss. 257, 40 So. 545, 117 Am.St.Rep. 740; Harris v. State, 96 Miss. 379, 50 So. 626; Hardaway v. State, 99 Miss. 223, 54 So. 833, Ann.Cas. 1913D, 1166; Collins v. State, 100 Miss. 435, 56 So. 527; Vickers v. U.S., 1 Okl.Cr.R. 452, 98 P. 467; State v. Cook, 132 Mo.App. 167, 112 S.W. 710; Battle v. U.S., 209 U.S. 36, 28 Sup.Ct. 422, 52 L.Ed. 670.

True it is that the court in its general oral charge to the jury seems to have recognized the capacity for harm contained in the cumulative appeals to prejudice shown by the bill of exceptions, but this court has not approved as altogether effectual the method of treating definite error by subsequent mere general statements of exclusion. Varnon v. Nabors, 189 Ala. 464, 66 So. 593. It is to be noted also that the court's remedial remarks to the jury, while expressed in general terms, minimized rather than reproved the arguments in which counsel had indulged, whereas this court has held even in civil cases that where improper, though not incurable, suggestions may have fallen upon fruitful ground, the effort of the trial court should be by specific, clear, and emphatic instruction, to reprobate the argument and set the jury on the way to a proper verdict. Wolffe v. Minnis, 74 Ala. 386. This court in Tannehill v. State, supra, observed that courts in other jurisdictions had held, on what seemed to be good reason, that an appeal to race prejudice constitutes so serious a breach of the privilege of argument that even the specifically directed interference of the court cannot suffice to nullify its prejudicial effect. However, the court, going so far only as the exigency of that case required, held merely that error had intervened. Probably the safe middle course in all such cases--cases of appeal to race prejudice included--is indicated by the following language of the court in Birmingham Railway v. Gonzalez, supra:

"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 particular case."

True it is, also, that on the occasion of the next manifestation of the race idea the court did all that it was requested by the defendant to do, and sustained an objection, and that the last appeal to that bias (that in which counsel expressed the hope, hardly required by any duty or necessity of a situation of which there can be no reasonable fear, that the heel of the Ethiopian might never be on the neck of the Caucasian) is extenuated by the recitals of the bill of exceptions that this statement was made in reply to "certain remarks" made by defendant's counsel in his address to the jury, and by his apparently contemporary concession that defendant should not be convicted unless the jury were convinced to a moral certainty of his guilt; but, while it is not easy in the circumstances of this case to conceive what "certain remarks" responsible counsel could have made that required the set-off of an appeal to race prejudice (certainly defendant had no such appeal) and while the court in a case of this character is interested in knowing the real means by which the conviction is procured rather than in the effect of the perfunctory concession of a legal truism, it has not referred to either or both of these later statements by counsel as constituting reviewable or reversible error in the absence of a motion for a new trial--such motions in criminal cases have been made reviewable by the statute (Code, § 2846, as amended by the act of September 22, 1915; Acts, p. 722)--but only as evidencing and illustrating the probable prejudicial effect of the court's ruling on the matter reserved for review by defendant's first exception taken in the court below. The court holds, therefore, upon due consideration of all the facts in this case, that for the ruling on the solicitor's argument the judgment of conviction must be reversed.

2. The bill of exceptions shows in the next place that defendant...