Smith v. State

• Decision Date: 30 June 1954
• Docket Number: 7 Div. 141
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

Page 916

73 So.2d 916

261 Ala. 270

SMITH v. STATE.

7 Div. 141.

Supreme Court of Alabama.

June 30, 1954.

Rogers, Howard & Redden, Birmingham, and Starnes & Holladay, Pell City, for appellant.

Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the state.

CLAYTON, Justice.

Appellant, L. V. Smith, was convicted of murder in the second degree and his sentence fixed at 25 years in the penitentiary. It is undisputed that while standing on his truck, loaded with seed cotton, appellant shot and killed Donald Hamby with a shotgun. Hamby was standing on the ground nearby. Appellant and his witnesses testified that at the time of the shooting, Donald Hamby was pointing an automatic pistol at appellant and was moving his thumb up and down the side, apparently in an effort to release the safety. Witnesses for the state contradicted this testimony and said that deceased had no pistol at the scene of the homicide.

The trial consumed the better part of a week and was bitterly fought by skilled counsel on both sides, giving rise to a lengthy transcript and many assignments of error. Although we have carefully considered all assignments and have read the record at length, we will respond to only such assignments as the circumstances of the case indicate, and which probably might arise on another trial.

Charges refused to appellant were either patently faulty or not applicable, or were adequately comprehended within the oral charge or the 57 written charges given at appellant's request; and we do not lengthen this opinion with a detailed treatment of them.

Counsel for appellant cite numerous instances of an objectionable question having been asked by the prosecution and withdrawn after the possible import thereof had been called to the jury's attention by the question itself; also to many critical and accusing remarks of counsel for the state, directed towards counsel for defendant during the course of the trial such as 'this may be a small matter to him, this boy's guts being blown out, but it is not to me. That is my idea about it'; also to requests or statements made by the prosecution during the trial which challenged or called on defendant to waive a legal right, such as, asking defendant to agree for the jury to view a truck parked near the courthouse after the court had ruled that the jury might not do so; also to statements made by the prosecution in argument to the jury calculated to prejudice them against defendant. And appellant seriously and vigorously argues that the cumulative effect of these prejudicial questions and statements even though withdrawn or excluded in many instances was to create an atmosphere of bias and prejudice in which the jury could not pursue its deliberation of the relevant issues and testimony unimpeded. For this reason appellant's counsel insists upon reversal of the cause based upon the decision of this court in Blue v. State, 246 Ala. 73, 19 So.2d 11, and authorities therein cited. However, we prefer to leave this question undecided and to rest our decision upon other points, in view of the probability that many of these matters may not recur on another trial of the cause, and the likelihood that upon another trial an entirely different overall picture may be presented.

We now consider in detail points raised by appellant: The father of the deceased testified that he and his wife were the only persons who appeared as witnesses before the grand jury prior to the return of the indictment in this case. Counsel for appellant referred to this testimony in his arguments to the jury, whereupon the solicitor made the following statement:

'We object to that statement, if the court please, I am not at liberty to state who came before the Grand Jury although it is my recollection that the Hambys did state that they were the only ones, but there is no testimony in this record that the Hambys were the only ones that were before the Grand Jury and I have stated repeatedly, if the Court please, that they were not the only two.'

Counsel for appellant objected to this statement by the Solicitor as being a statement of fact not supported by the evidence and assigned as grounds for reversal the court's action in overruling defendant's objection. The rule in such cases is stated by this court in the opinion by Stone, J., in the often quoted case of Cross v. State, 68 Ala. 476, 484:

'The statement must be made as of fact; the fact must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury; or the case is not brought within the influence of this rule.'

It has been decided in Alabama that the question as to who appeared before the grand jury is not pertinent to the issues in the case on trial before the petit jury and is not a matter having a natural tendency to influence the finding of the jury. In the opinion of our Court of Appeals in the case of Williams v. State, 26 Ala.App. 555, 556, 163 So. 463, in a somewhat analogous situation appears the following:

'There is no law requiring the names of witnesses appearing before the grand jury to be indorsed on indictments returned, and when such endorsements are made there is no presumption that such witnesses appeared and testified, and the solicitor should not have referred to the fact that the names appeared on the indictment; but the fact as to who appeared before the grand jury in this case is so foreign to any issue involved, that we fail to see how the defendant could be injured thereby.'

Likewise, in the case under consideration, the statement gratuitously injected into the argument by the solicitor as to who appeared before the grand jury was entirely extraneous to any issue involved and should not have been made. But it did not have a natural tendency to influence the finding of the jury. Williams v. State, supra.

Although being a statement of fact unsupported by the evidence, not being pertinent to the issue of defendant's guilt and not having a natural tendency to influence the finding of the jury, it fails to meet the requirements of the rule for reversal of the cause. Cross v. State, supra; Alabama Power Co. v. Goodwin, 210 Ala. 657, 659, 99 So. 158; Gibson v. State, 193 Ala. 12, 21, 69 So. 533; Mobile J. & K. C. R. R. Co. v. Bromberg, 141 Ala. 258, 284, 37 So. 395; Lide v. State, 133 Ala. 43, 62, 31 So. 953.

Another basis argued by appellant for reversal was the impeachment of a number of his witnesses on immaterial matters. Mrs. Ford, a witness for the defendant, was asked on cross-examination by the state if she did not accompany Mrs. L. V. Smith (wife of appellant) to the home of Mrs. Jackson (a witness for the state), and if at that time and place, Mrs. Smith didn't ask Mrs. Jackson to swear that Donald Hamby, the deceased, had a pistol and if at that time Mrs. Jackson said: 'No, I will not swear that he had a pistol, because I didn't see a pistol.' After defendant's timely objection was overruled, the witness answered that she didn't know anything about it. The state then in rebuttal was allowed to ask Mrs. Jackson the following question: 'Tell these gentlemen whether or not three or four days before the preliminary trial, Mrs. L. V. Smith and Mrs. Troy Patterson came to your house on the morning of that day--Mrs. Troy Ford, I mean, if they didn't come to your--state whether or not they came to your home in the morning of that day three or four days before the preliminary trial, and if Mrs. Smith, Mrs. L. V. Smith, didn't say to you, will you swear that Don Hamby had a pistol, and if you didn't reply, I will not swear he had a pistol because I didn't see it.' Her answer was in the affirmative. Mrs. L. V. Smith was not a witness in the case and could not be impeached.

In the case of Davis v. State, 188 Ala. 69, 68, 66 So. 67, 70, this court stated:

'The testimony of Jeff Williams, a witness for defendant, to the effect that Howard had asked him to testify that the knife belonged to the defendant, which he refused to do, could have been admissible only to impeach Howard by showing his interest and activity in the prosecution. But Howard did not testify, and so was not the subject of impeachment.'

The effect of the question was to impeach defendant's witness Mrs. Ford on an immaterial matter, which is not allowable. King v. State, 233 Ala. 198, 171 So. 254; Blair v. State, 211 Ala. 53, 99 So. 314; Carter v. State, 133 Ala. 160, 32 So. 231; Jones v. State, 31 Ala.App. 378, 17 So.2d 545.

A different rule applies to the admission of testimony tending to impeach defendant's witness J. B. Walters. In two instances he was asked, on cross-examination, about alleged attempts by him to influence testimony of other witnesses in the case on trial. One related to a certain statement alleged to have been made by him in conversation with Mrs. Jackson at a filling station, regarding her testimony in this case, and another to his calling a group of witnesses together on the Court House lawn and making a statement instructing them to testify that it was raining on the morning of the killing. After he denied making the statements, Mrs. Jackson was allowed, over defendant's objection, to testify that he did make such statements. In this there was no error for the reason that the questions and...