State v. Tucker

• Decision Date: 16 December 1925
• Docket Number: 482.
• Citation: 130 S.E. 720,190 N.C. 708
• Parties: STATE v. TUCKER ET AL.
• Court: North Carolina Supreme Court

130 S.E. 720

190 N.C. 708

STATE v. TUCKER ET AL.

No. 482.

Supreme Court of North Carolina

December 16, 1925

Appeal from Superior Court, Iredell County; Shaw, Judge.

Melvin Tucker and another were convicted of violating the prohibition laws, and the defendant named appeals. New trial.

Improper argument of prosecutor not cured by fact that it may be more harmful to state than to defendants.

Criminal prosecution tried upon an indictment charging the appealing defendant and another with violations of the prohibition laws. The state offered evidence tending to support the charges. The defendants while offering evidence, did not go upon the stand as witnesses in their own behalf.

The record discloses the following exception: Mr. J. G. Lewis who assisted the solicitor in the prosecution of the case made the concluding argument to the jury, and in the course of his remarks, among other things, said:

"Gentlemen of the jury, look at the defendants; they look like professed (professional) bootleggers; their looks are enough to convict them." Counsel for defendants immediately objected, but the court held the argument to be proper and overruled the objection. From an adverse verdict and judgment pronounced thereon, the defendant Melvin Tucker appeals.

Chas. W. Stevens, of Winston-Salem, for appellant.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY C.J.

The one serious question presented by the record is whether it is prejudicial error, in a case of this kind, for the solicitor or counsel for the private prosecution, in the closing argument to the jury, to comment upon the looks and appearance of the defendants who have not gone upon the witness stand, to the effect, "Gentlemen of the jury, look at the defendants; they look like professed (professional) bootleggers; their looks are enough to convict them," and on objection, to have such comments held by the court to be proper. Similar remarks were said to be prejudicial, and were either held for error or disapproved in State v. Murdock, 183 N.C. 779, 111 S.E. 610; State v. Saleeby, 183 N.C. 740, 110 S.E. 844; State v. Davenport, 156 N.C. 610, 72 S.E. 7; State v. Tyson, 133 N.C. 699, 45 S.E. 838; Jenkins v. Ore Co., 65 N.C. 563; State v. Williams, 65 N.C. 505; Coble v. Coble, 79 N.C. 589, 28 Am. Rep. 338 (the "upas tree" case).

Had the defendants gone upon the witness stand, their demeanor, while testifying, would have been a proper subject for comment, the same as that of other witnesses, but of this counsel was not speaking. It was the right of the state to have the defendants present at the trial, both for the purpose of identification and to receive punishment if found guilty. State v. Johnson, 67 N.C. 55. And if a defendant should persist, for example, in wearing a mask while on trial, the court would be fully justified in ordering the mask removed, so that he might be identified by the witnesses. Warlick v. White, 76 N.C. 179. But by express statute, a defendant on trial in this jurisdiction, charged with a criminal offense, is, at his own request, but not otherwise, competent to testify in his own behalf, "and his failure to make such request shall not create any presumption against him." C. S. § 1799.

In the decisions dealing directly with this statute, it has been held that counsel for the prosecution is precluded from referring in his argument to any failure on the part of a defendant to testify, or to become a witness in his own behalf. State v. Harrison, 145 N.C. 414, 59 S.E. 867. The presumption of innocence which surrounds a defendant upon his plea of "not guilty," and which goes with him throughout the trial, is not overcome by his failure to testify in the case. He is not required to show his innocence, but the burden is on the state to establish his guilt beyond a reasonable doubt. State v. Singleton, 183 N.C. 738, 110 S.E. 846. And while his absence from the witness stand, or his failure to testify, may be a circumstance not without its moral effect upon the jury, of which every lawyer representing a defendant is always conscious (State v. Bynum, 175 N.C. 783, 95 S.E. 101), yet this fact, as a matter of law, creates no presumption against him, and it is not a proper subject for comment by counsel in arguing the case before the jury ( State v. Humphrey, 186 N.C. 533, 120 S.E. 85; State v. Traylor, 121 N.C. 674, 28 S.E. 493).

In passing, we observe, however, that this statute does not restrict the prosecuting attorney from making such comments upon the evidence and drawing such deductions therefrom as would have been legitimate before the passage of the act, for, while enlarging the rights of the defendants, the statute did not abridge the privileges of the prosecution. State v. Weddington, 103 N.C. 364, 9 S.E. 577. We would not be understood as saying anything which might have a tendency, even in the slightest degree, to suppress the highest enthusiasm of forensic effort on behalf of the state in a criminal prosecution, or in any case at the bar, but counsel should always remember that the ends of justice are best subserved by fair, open, and legitimate debate. To arrive at the exact truth, according to the facts and the law of a case, is the aim of every legal contest, and to this end the utmost power of logical reasoning may be employed. Indeed, to master the facts and to marshal them in such a way as to lay bare the truth of a matter are marks of the accomplished advocate.

We can readily understand how the observations of counsel, here complained of, were made by the private prosecutor in the heat of debate, and disregarded by the learned judge while busily engaged in the trial of the cause, but, sitting here in calm review, we are unable to overlook the remarks in the face of an exception taken at the time, or to give them the sanction of our approval. Such denunciatory comments, when seriously made, are universally disapproved. Not only do we find a uniform disapproval of such remarks in our own reports, but to like effect are the expressions in other jurisdictions. State v. Davis (Mo. Sup.) 190 S.W. 297; January v. State, 16 Okl. Cr. 166, 181 P. 514; Thurman v. State, 85 Tex. Cr. R. 276, 211 S.W. 785; Atkeison v. State (Tex. Cr. App.) 273 S.W. 595; and many others too numerous to be cited.

In Bessette v. State, 101 Ind. 85, it was held prejudicial error to permit the prosecuting attorney, over objection, to comment on the personal appearance of the defendant, not as a witness, nor on account of his manner and bearing as such, but as indicating a probability of guilt; the language used being as follows:

"Luke Bessette has a bad-looking face; I ask you to just look at his face; you have a right to look at his face, and I have the right to ask you to look at his face, and as prosecuting attorney I have a right to comment upon it. If his face does not show him to be a bad man, then I am not a good judge of the human countenance."

Speaking to the objection made by defendant's counsel to these remarks, and of which no notice was taken by the presiding judge, the appellate court said:

"The remarks indulged in by the prosecuting attorney, having reference to the personal appearance of the accused, not as a witness, nor on account of his manner and bearing as such, but relating to his personal appearance as an accused person before the bar of the court, cannot be justified. * * * It is the duty of the nisi prius court to control and direct the argument of counsel in the interest of justice, and when the prosecutor unconsciously, or, perhaps, from want of experience, went so far outside of the circle of fair debate as to attempt to degrade and humiliate the defendant, by arraigning him for his personal appearance and characteristics while he was by the compulsion of the court at its bar, it was the duty of the court to interfere for his protection."

Commenting on the sharp language used by counsel in McLamb v. Railroad, 122 N.C. 862, 29 S.E. 894, it was said by this court:

"Much allowance must be made for the zeal of counsel in a hotly contested case, especially where the colloquy is mutual, and, indeed, much latitude is necessarily given in the argument of a case where there is conflicting evidence; but counsel should be careful not to abuse their high prerogative, and where the remarks are improper in themselves, or are not warranted by the evidence and are calculated to mislead or prejudice the jury, it is the duty of the court to interfere."

The same expression was made in Perry v. Railroad, 128 N.C. 471, 39 S.E. 27, where a new trial was awarded for improper remarks of counsel.

The rule applicable is forcibly stated by Bynum, J., in Coble v. Coble, 79 N.C. 590 (28 Am. Rep. 338) as follows:

"Some allowance should be made for the zeal of counsel and the heat of debate, but, here, the language and meaning of counsel were to humiliate and degrade the defendant in the eyes of the jury and bystanders--a defendant who had not been impeached by witnesses, by his answer to the complaint, or by his conduct of the defense, as it appears of record. Such an assault is no part of the privilege of counsel and was well calculated to influence the verdict of the jury. The defendant's counsel interposed his objection in apt time and upon the instant, but they met with no response from the court, and for this error there must be a venire de novo."

Speaking to the subject in State v. Tyson, 133 N.C. 698, 45 S.E. 840, Walker, J., said:

"We conclude, therefore, that the conduct of a trial in the court below, including the argument of counsel, must be left largely to the control and direction of the presiding judge, who, to be sure, should be careful to see that nothing is said or done which would be calculated

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