Owens v. State

• Decision Date: 15 April 1924
• Docket Number: 7 Div. 930.
• Parties: OWENS v. STATE.
• Court: Alabama Court of Appeals

99 So. 774

19 Ala.App. 621

OWENS v. STATE.

7 Div. 930.

Court of Appeals of Alabama

April 15, 1924

Appeal from Circuit Court, Clay County; George F. Smoot, Judge.

Marvin Owens was convicted of seduction, and appeals. Reversed and remanded.

Pruet & Glass, of Ashland, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD J.

On the trial in this case defendant filed motion to quash the indictment on the ground of insufficiency of evidence before the grand jury returning the bill. The court heard evidence on the motion, and entered a judgment denying same. In this there was no error. If there had been no evidence before the grand jury, the motion should have been sustained, but, there having been some legal evidence, its sufficiency was for the grand jury. Walker v. State, 17 Ala. App. 555, 86 So. 257.

The date of the alleged seduction was fixed as of date the fourth Saturday night in April, after the promise of marriage had been made on March 1st preceding. Following that testimony the solicitor asked questions seeking to prove that subsequent to that time the prosecuting witness became pregnant by defendant. The defendant objected, and the court said: "Well, under the decision in this Herbert Case ( Herbert v. State, 201 Ala. 480, 78 So. 386), it would not be admissible. I think the court ought to be bound by it, notwithstanding I don't think it is right." To the last sentence in the foregoing quotation the defendant then and there excepted. Later on in the trial, and over the objections and exceptions of the defendant, the state was permitted to examine in extenso Dr. Stephens with reference to an examination he had made of the woman and admissions made to him by defendant touching and relating alone to the pregnancy of the woman, which had admittedly occurred subsequently to the date fixed as the date of first intercourse between the parties. After the state closed its case, the defendant again moved to exclude the testimony of Dr. Stephens, and the motion was granted. Motion for new trial was made and overruled.

Whatever may have been the opinion of judges of courts of inferior jurisdiction, such judges must conform their opinions expressed in the discharge of their official duty to the opinions of the Supreme Court, whose decisions are "the last word" as to the law in this state, and defendants on trial are entitled to have their trials according to these decisions, freed from any disparaging remarks by the trial judge regarding them, in the presence or hearing of the jury. Having announced that "notwithstanding, I don't believe it is right," he would be bound by it, the trial judge permitted the witness, Dr. Stephens, to testify over the timely objection of the defendant, in the very teeth of the decision in Herbert's Case, supra. True, this testimony was afterwards excluded, but the harm had been done. Trial judges are the only direct contact the judicial system has with the people; it is through them the appellate courts must speak; their influence in trials by jury can hardly be overestimated, and it is through them the guarantee of "life, liberty and the pursuit of happiness" must be preserved. Any remark by a trial judge in disparagement of the decisions of the superior courts relating to causes then on trial is not only error, to work a reversal in favor of the party against whom made, but highly improper. It is so decided in Furhman v. City of Huntsville, 54 Ala. 263; W. U. Tel. Co. v. Northcutt, 158 Ala. 539, 48 So. 553, 132 Am. St. Rep. 38; Birmingham R., etc., Co. v. Smith, 14 Ala. App. 264, 69 So. 910; Barker v. State, 2 Ala. App. 92, 57 So. 88; Rogers v. Smith, 184 Ala. 506, 63 So. 530; Beason v. State, 43 Tex. Cr. R. 442, 67 S.W. 96, 69 L. R. A. 193. In the last-cited case it was held that a remark of the trial court indicating that he gave a certain charge reluctantly was reversible error. This court has many times reversed the judgment of lower courts on account of improper remarks of the solicitor, made in the heat of argument, where much allowance must be made. How much more prejudicial is an improper remark of the judge, dignified and learned in the law, and presiding in the case then on trial. In this connection, and as an...