Pointer v. State

• Decision Date: 19 August 1930
• Docket Number: 7 Div. 614.
• Citation: 129 So. 787,24 Ala.App. 23
• Parties: POINTER v. STATE.
• Court: Alabama Court of Appeals

129 So. 787

24 Ala.App. 23

POINTER v. STATE.

7 Div. 614.

Court of Appeals of Alabama

August 19, 1930

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Will Pointer was convicted of manslaughter in the first degree and he appeals.

Reversed and remanded.

Bibb, Field, Field & Woolf and Knox, Acker Sterne & Liles, all of Anniston, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The appellant was tried on an indictment charging him with murder in the first degree. The jury returned a verdict of guilty of manslaughter in the first degree. A motion for a new trial was overruled, and the appellant assigns as error the overruling of the motion, as well as various rulings during the trial.

The evidence tended to show that the deceased, Phillips, in company with one Pinson (both Phillips and Pinson being enemies of appellant and not on speaking terms with him) waited at a point where he had to pass when returning from his work to his home, and that the deceased, Phillips, accosted Pointer about a controversial matter and barred Pointer's way, refusing to let him pass when Pointer tried to continue on toward his home. A difficulty then ensued between the two men, in the course of which appellant was severely injured, by having been beat over the head with a pistol, as a result of which he was drenched with his own blood. The combatants, in their struggle, moved from the point of original encounter to a point some 70 feet away, where the struggle terminated by the firing of the pistol shots that killed Phillips. The pistol was fired so close to Phillips that his clothing was set on fire.

The defendant's testimony tended to show that he was unarmed when accosted by deceased; that deceased produced a pistol and fired at the defendant, whereupon the two men grappled; and that, in the encounter, Pointer finally succeeded, in the course of a desperate hand-to-hand struggle, in turning upon Phillips the latter's own pistol. The pistol with which Phillips was shot was a Colt's pistol, No. 70250. The defendant's evidence tended to trace the history of the pistol from the factory of the Colt Manufacturing Company through the hands of a number of owners, and showed that it was sold to Phillips about a year before the affray. The widow of the deceased, however, denied that the pistol belonged to him.

The appellant excepted to numerous rulings of the trial court, and assigns as error a series of arguments, statements, questions, and offers to prove, made in the presence of the jury, as to matters which the appellant avers were highly prejudicial to him. The appellant argues that "there were several of these occurrences, each sufficient in and of itself to necessitate a reversal, and that the entire series of such matters, taken as a whole, created a general atmosphere of prejudicial and improper suggestions and statements to the jury, grossly invasive of his right to a legal trial."

Among the complaints so made by the appellant are the following, as stated by him:

"1. In the opening of the case, the solicitor attempted to prejudice the defendant by criticising as unusual the action of his counsel in stating the issues to the jury.

"2. The solicitor, in the presence of the jury, during the examination of one of the State's witnesses, stated that this witness 'very generously' admitted that, he was not on speaking terms with Pointer.

"3. The solicitor stated, in the presence of the jury, that he (the solicitor) had been to the scene of the homicide, and knew that there were no high weeds there.

"4. The solicitor attempted to prejudice the defendant by showing that he was on bad terms with his nearest neighbor. After the court had sustained an objection to this question, he stated, 'I will try to get it this way; I am determined to have it.' After the court stated to the jury that this was excluded, the solicitor, in the hearing of the jury, said, 'but you can't exclude him from doing it.' After the court sustained the motion to exclude that statement, the solicitor then stated, 'such stuff as that is tom-foolishness.'

"5. Upon the court's giving the defendant's counsel permission to speak to a witness on the stand, one of the prosecuting attorneys stated, in the presence of the jury, 'looks like they are giving him the third degree to me.' When objection was made to this remark, this prosecuting attorney stated, in the presence of the jury, 'well, the jury can tell as well as I can.' Objection was made to this statement, and the prosecuting attorney then said, 'that is all right. I have seen it done lots. I just never did do it.'

"6. One of the prosecuting attorneys argued that the jury should find that a certain blow on the head was sufficient to cause death because the witness Usrey had been quoted as making that statement out of court. Thereupon, the court instructed the jury that there was no evidence that such wound would produce death, and that they could not draw such an inference from Usrey's statement. Thereupon, the prosecuting attorney stated to the jury, 'Mr. Usrey is an undertaker, and is supposed to know the anatomy of a human body.' Objection was made to this. The court inquired whether there was any evidence in the record that Usrey was an undertaker, to which the prosecuting attorney replied, 'I don't know, your Honor. I just knew that he was an undertaker'-as a matter of fact, there being no such evidence in the record.

"7. The solicitor attempted to have the jury convict because of the defendant's bad reputation, arguing to them that there were many good witnesses testifying to the character of a certain State's witness, but no witness to testify to the good character of the defendant, and stating to the jury that when a defendant is on trial, 'you want to try him according to his past and what is his record.'

"8. The special prosecuting attorney stated to the jury, in his argument, that he and the solicitor had talked to all the witnesses in the case and had carefully deliberated over what witnesses to put up. When the court sustained an objection to this statement, the prosecuting attorney then made the statement to the jury, 'I will state to you, gentlemen of the jury, that no witness was put on the stand without our knowing that he was going to swear.'

"9. One of the prosecuting attorneys, after the court had ruled that a certain argument by him was illegal, stated, 'let it go out, your Honor; I can argue this case without distressing these gentlemen.'

"10. The solicitor, in his closing argument, undertook to prejudice the defendant by commenting on objections defendant had made to the court, and a motion which defendant had made to the court to reprimand the special prosecutor, the solicitor using the following language: 'It is the first time in my life, and I hope it will be the last time, I have ever seen a distinguished man, a man whose life has been approved, who has been your Circuit Judge, called on to humiliate himself before a jury."'

In addition to the instances above set forth, which the appellant urges as showing a general course of prejudicing his rights by presenting to the jury illegal matter through the medium of improper arguments, side remarks to the jury, insinuations, etc., there is one occurrence which needs to be dealt with specifically. The state produced as a witness one Carroll, who testified to certain things which he had seen shortly after the homicide. On cross-examination, he testified to certain facts very favorable to the defendant. Thereupon, on redirect examination, the witness was asked the following question by the special prosecutor: "You have been in the penitentiary for stealing a horse, haven't you?" The defendant objected to the question, and the objection was sustained. Thereupon, in the presence of the jury, the prosecuting counsel said: "We offer to prove, if the court please, that this man was sent to the penitentiary for stealing a horse." When this occurred, the defendant asked that the jury retire, and moved the court to grant a mistrial, on the ground that gross and ineradicable prejudice had been done his case by the asking of this question and the making of the offer to prove in the presence of the jury. The court overruled the motion, and the defendant excepted. The defendant assigned this ruling as one of the grounds of his motion for a new trial, and also assigned the wrong and prejudice alleged to have been done him by the asking of this question and the statement as to the offer to prove.

Upon the most elementary principles, it is manifest that this occurrence...