Peterson v. State

Decision Date30 January 1936
Docket Number3 Div. 153
Citation166 So. 20,231 Ala. 625
PartiesPETERSON v. STATE.
CourtAlabama 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.

BROWN and FOSTER, JJ., dissenting.

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.

THOMAS Justice.

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 "considered, ordered and adjudged by the Court that a plea of not guilty be *** entered in this case for the defendant. Thereupon, the defendant further pleaded thereto not guilty by reason of insanity. And on motion of the Solicitor for the State," 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The plea of insanity was later withdrawn, and no issue of fact was founded thereupon.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:

"In course of argument, the assistant solicitor said: 'That the effect of the finding of the defendant not guilty by reason of insanity would probably be to "put him upon the ground." ' ***
"Objection to this argument was overruled and exception reserved.
"This line of argument was presented in Anderson v. State, 209 Ala. 36, 95 So. 171, and Bachelor v. State, 216 Ala. 356, 361, 113 So. 67. In both cases the trial court sustained the objection to such argument, and instructed the jury to disregard it. This court treated such argument as improper, holding the action of the trial court sufficient to eradicate its harmful effect.
"Clearly the sole question in this connection was whether defendant was 'not guilty by reason of insanity.'
"What might happen if he were sent to the insane asylum, instead of the penitentiary, should not have been thrown into the case to influence the verdict. The action of the trial court was an invitation to the jury to consider such contingency.
"Maybe the law should provide some greater safeguards, such as a judicial inquiry, before persons found not guilty of [166 So. 22] murder by reason of insanity should be discharged from the hospital for the insane; but this should not be allowed to influence juries in trials like this. State v. Johnson, 151 La. 625, 92 So. 139."

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:

"An accused person has a constitutional right to be heard by himself and counsel. In addressing the jury, counsel must be allowed to select and pursue their own line of argument, and their own methods of dealing with the testimony; and they may also state the principles of law applicable to the case, and may quote from books in elucidation of their views of the law. 'Every fact the testimony tends to prove; every inference counsel may think arises out of the testimony; the credibility of the witnesses, as shown by their manner, the reasonableness of their story, their intelligence, means of knowledge, and many other considerations, are legitimate subjects of criticism and discussion. So, also, the conduct of the accused, and his conversation (if in evidence), may be made the predicate of inferences, favorable or unfavorable; and analogies and illustrations may be drawn, based on the testimony, on public history, or on science.' These are legitimate
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