Peterson v. State
Decision Date | 30 January 1936 |
Docket Number | 3 Div. 153 |
Citation | 166 So. 20,231 Ala. 625 |
Parties | PETERSON v. STATE. |
Court | Alabama Supreme Court |
Rehearing Denied March 5, 1936
Appeal from Circuit Court, Montgomery County; Eugene W. Carter Judge.
Henry Peterson was convicted of murder in the first degree, and he appeals.
Affirmed.
Alex C Birch, John S. Marks and L.A. Sanderson, all of Montgomery for appellant.
A.A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The indictment and conviction were for murder in the first degree.
The crime was committed on July 9, 1935; indictment returned July 11; the arraignment on July 18, 1935. The defendant not being able to employ counsel, the court appointed two members of the bar who conducted the defense. Code,§ 5567. The trial was had on July 24, 1935.
At the arraignment there was a motion for a continuance on the grounds that the defendant had not sufficient time to inspect the indictment and to prepare a defense; "thereupon, the Court permitted counsel for the defendant to inspect the indictment for a period of five minutes, and after the expiration of said period of time of five minutes," it was "considered, ordered and adjudged by the Court that the defendant's motion for a continuance of this case be *** overruled; and the said defendant being duly arraigned and charged upon the indictment in this case refused or neglected to plead and stood mute," whereupon, it was it was "considered and ordered by the Court that the 23rd day of July, 1935, be *** appointed as the day for the trial of this case."
The plea of insanity was later withdrawn, and no issue of fact was founded thereupon.
When the case was called for trial, there was another motion for continuance on the grounds that counsel had not sufficient time in which to prepare and make defense. Exception was taken to the action of the court in overruling this motion. Such a motion addresses itself to the sound discretion of the court, and the exercise thereof is not subject to review except for gross abuse. Burns v. State, 226 Ala. 117, 145 So. 436; Hudson v. State, 217 Ala. 479, 116 So. 800.
It is true that defendant's counsel should have had ample opportunity to consider what action to take at the arraignment. However, the record does not show that prejudice resulted from such action of the court. McAdams v. State, 216 Ala. 659, 114 So. 39; Cagle v. State, 211 Ala. 346, 100 So. 318; Morris v. State,
193 Ala. 1, 68 So. 1003; Sanderson v. State, 168 Ala. 109, 53 So. 109. That is to say, the time allowed counsel for defendant to prepare and present a defense was sufficient under the circumstances of the case and the pleas interposed. Jackson v. State, 229 Ala. 48, 155 So. 581; Powell et al. v. State, 224 Ala. 540, 141 So. 201; Morris v. State, supra. The refusal of a continuance on the ground, as urged by counsel for defendant, that sufficient time is required to ascertain facts as to insanity in defendant's family, was held not an abuse of discretion in the case of Jarvis v. State, 220 Ala. 501, 126 So. 127.
We find no reversible error in overruling the several motions of the defendant, as we have indicated.
Was the argument of the state's counsel, relative to the possibility of defendant being pardoned if given a life sentence, to which defendant objected and the court sustained that objection, more than an appeal for the death penalty? If so, was its influence on the jury eradicable by action of the court in sustaining the objection? This subject was considered in McNeill v. State, 102 Ala. 121, 127, 15 So. 352, 48 Am.St.Rep. 17; Satterfield v. State, 212 Ala. 349, 102 So. 691; Cross v. State, 68 Ala. 476; Bachelor v. State, 216 Ala. 356, 113 So. 67; and People v. Rogan, 1 Cal.(2d) 615, 36 P.2d 631, 95 A.L.R. 566. In these cases the trial court sustained objection of the defendant to such argument, and instructed the jury not to consider the same in fixing the penalty, in the event there was a verdict of guilty.
Much discretion is allowed trial courts in respect to limiting arguments of counsel, and, unless there is an abuse of that discretion, reversible error has not intervened. Phillips v. Ashworth, 220 Ala. 237, 124 So. 519; American Ins. Co. v. Fuller, 224 Ala. 387, 140 So. 555; Peterson v. State, 227 Ala. 361, 150 So. 156; Metropolitan Life Ins. Co. v. Estes et al., 228 Ala. 582, 155 So. 79; Bachelor v. State, 216 Ala. 356, 113 So. 67.
The rules that obtain in limiting arguments of counsel, and the authorities, are collected in Anderson v. State, 209 Ala. 36, 43, 95 So. 171.
The instant case is distinguishable from Boyle v. State, 229 Ala. 212, 154 So. 575, where the court overruled defendant's objection to the argument and exception was reserved. Here the court sustained the objection of defendant and cautioned the jury not to consider the objectionable statement and argument made by the state's counsel to the jury.
It was observed in the Anderson Case, supra (1) that there is no iron-clad rule by which the prejudicial qualities of improper remarks or argument of counsel can be ascertained in all cases, much depending upon the issues, parties, and general circumstances of the particular case; (2) that, where the statement of counsel is only objectionable because of matter of fact not in evidence, the objection and motion must specifically indicate the improper statement and separate it from the proper matter of the context; and (3) that "An exception to the general rule requiring appropriate objection or motion invoking corrective instruction or action by the trial court is where the remark or argument of counsel is so grossly improper and highly prejudicial to the opposing party as that neither retraction nor rebuke by the trial court would have destroyed its sinister influence *** as recognized appeals to race or class prejudice." 209 Ala. 36, 43, 44, 95 So. 171, 179.
In Boyle v. State, 229 Ala. 212, 225, 226, 154 So. 575, 587, the court said:
We have heretofore indicated that the instant case is distinguishable from the Boyle Case, supra.
Defendant's counsel contend that the corrective instruction of the trial judge was not sufficient to eradicate the evil done. If the argument of counsel was not so objectionable as that it could be eradicated by the instruction of the court to the jury to disregard the same, such action of the court was sufficient. Bachelor v. State, 216 Ala. 356, 113 So. 67; Anderson v. State, 209 Ala. 36, 95 So. 171; Fidelity-Phenix Fire Ins. Co. of New York v. Murphy (Ala.Sup.) 166 So. 604.
A legitimate inference drawn from a proven fact is permissible as in an opinion or a proper hypothesis; but it is not permissible to transcend the record and indulge in a mere surmise or statement of fact not in evidence. That is, argument of counsel should be confined to a fair discussion of relevant facts and inferences to be drawn from the evidence in the case, and, where it exceeds the same, should be excluded. Du Bose v. State, 148 Ala. 560, 42 So. 862; Piano v. State, 161 Ala. 88, 49 So. 803.
It may be well to advert to the observations contained in Cross v. State, 68 Ala. 476, as to limitations of arguments of counsel:
...
To continue reading
Request your trial-
Smith v. State
...which to prepare the defense. Reversible error is not made to appear in the action of the trial court denying that motion. Peterson v. State, 231 Ala. 625, 166 So. 20; Knight v. State, 273 Ala. 480, 142 So.2d When the case was called for trial on Monday, July 6, 1964, counsel for Smith requ......
-
Smith v. State
...in respect to limiting arguments of counsel and, in the absence of some abuse of that discretion, no error exists. Peterson v. State, 231 Ala. 625, 166 So. 20 (1936); Jackson v. State,239 Ala. 38, 193 So. 417 (1940); Stovall v. State, 18 Ala.App. 559, 93 So. 275 (1922). V After careful exam......
-
Dannelly v. State
...as to it, the error may be cured. Pilley v. State, 247 Ala. 523, 25 So.2d 57; Oliver v. State, 232 Ala. 5, 166 So. 615; Peterson v. State, 231 Ala. 625, 166 So. 20; Boyle v. State, 229 Ala. 212, 154 So. 575; Bachelor v. State, 216 Ala. 356, 113 So. 67; Anderson v. State, 209 Ala. 36, 95 So.......
-
Ellis v. State
...State, 216 Ala. 356, 113 So. 67; Bridges v. State, 225 Ala. 81, 124 So. 56-61; Canty v. State, 238 Ala. 384, 191 so. 260; Peterson v. State, 231 Ala. 625, 166 So. 20; Kennedy v. State, 237 Ala. 359, 186 So. 453; Provident Life, etc., v. Downey, 242 Ala. 482, 7 So.2d 17; Alabama Power Co. v.......