State v. Woodham
| Decision Date | 16 May 1974 |
| Citation | 294 So.2d 740,292 Ala. 363 |
| Parties | STATE of Alabama v. A. D. WOODHAM et al. SC 403. |
| Court | Alabama Supreme Court |
Jack W. Smith, and W. Perry Calhoun, Sp. Asst. Attys. Gen., Dothan, for the State.
Alto V. Lee, III, and Alan C. Livingston, Dothan, for appellees.
This is the second time the State of Alabama has appealed to this court from a judgment of the Circuit Court of Houston County rendered in a condemnation proceeding brought by the State against the appellees.
The first appeal was from a judgment based on a jury verdict in favor of the appellees in the sum of $309,600. We reversed and remanded because of certain rulings by the trial court on evidence offered by the appellees, the condemnees, including those rulings which permitted the appellees to show the value of personal property in the store building which was on the land sought to be condemned. State v. Woodham, 288 Ala. 608, 264 So.2d 166.
The only question for determination at the trial after remandment was the amount of compensation to be awarded to appellees, the right of the State to condemn not being questioned. At that trial there was a jury verdict in favor of appellees in the amount of $282,139.33. Judgment followed the verdict. The State's motion for new trial was overruled and this appeal followed.
The State contends that the trial court erred to a reversal in allowing counsel for appellees to say to the jury in his opening statement:
Prior to the time that statement was made, the court excused the jury from the courtroom and conferred with counsel for the parties. During the course of this conference, counsel for appellees took the position that our holding on first appeal was not applicable in this it had reference to consequential damages to personalty whereas it was appellees purpose to show that while the first appeal was pending the State took control of appellees' personalty located in the condemned building and sold it to a third party. It was appellees' insistence that they were entitled to present evidence to that effect and to be compensated for the personal property of appellees which had been appropriated by the State. Counsel for the State took a contrary position. The trial court during the colloquy gave no indication of how it intended to rule when such evidence was proffered by appellees.
Shortly after the conclusion of the conference, the court and counsel returned to the courtroom and immediately thereafter counsel for appellees made the statement about which appellant complains.
It is to be noted that counsel for appellee said: counsel hoped it would because when offered the trial court consistently ruled that it was not admissible under our holding on the first appeal.
The trial court repeatedly advised the jury in its oral charge to the effect that its sole responsibility was to determine the amount of compensation, if any, to which the appellees were entitled for 'land taken in this case.'
The appellant, the condemnor, did not request the trial court to give a written instruction admonishing the jury to give no consideration to the remarks of appellees' counsel presently under consideration. In Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797, wherein reversal was sought because of remarks made by appellee's attorney in his opening statement to the jury, this court said, in part:
'* * * It has been said that each case of this character must be decided upon its own merits and that there is no horizontal rule by which these qualities can be ascertained in all cases. Much depends on the issues, the parties, and the general atmosphere of the particular case. The final test is: 'Can the prejudicial tendency or effect of the improper statement be counteracted by an appropriate instruction from the trial judge, or is it probably beyond the reach of such remedial action? " (Authorities cited.)
In Kilcrease, supra, we affirmed the action of the trial court in denying appellant's motion for a mistrial because of the alleged prejudicial statement. We realize that in Kilcrease the trial court sustained objections to the statement and admonished counsel 'not to refer to the matter.' There was no such action by the trial court in this case. But we think the provisions quoted above from Kilcrease are applicable here. We think any prejudicial effect of the statement about which complaint is here made, could have been counteracted by an appropriate instruction from the trial court.
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