Waller v. State

• Decision Date: 23 January 1941
• Docket Number: 4 Div. 184.
• Citation: 4 So.2d 911,242 Ala. 1
• Parties: WALLER v. STATE.
• Court: Alabama Supreme Court

4 So.2d 911

242 Ala. 1

WALLER v. STATE.

4 Div. 184.

Supreme Court of Alabama

January 23, 1941

Rehearing Denied March 27, 1941.

Certiorari to Court of Appeals.

Thos S. Lawson, Atty. Gen., and Willard McCall, Asst. Atty. Gen for the motion.

Carmichael Crenshaw & Simmons, of Opp, D. M. Powell, of Greenville and Powell, Albritton & Albritton, of Andalusia, opposed.

Murphy & Cook, of Andalusia, amici curiae, in opposition to the motion.

BROWN, Justice.

The Court of Appeals, in the opinion reversing the case for the alleged error of the Circuit Court in overruling the defendant's objection to the statement of the Solicitor in continuing his closing argument to the jury "That is a remarkable thing, gentlemen," states:

"Appellant was convicted of the offense of robbery. Code 1928, Sec. 5460, Code 1940, Tit. 14, § 415.

"His indictment, arraignment, trial, and conviction, were all in the regular forms provided by law.

"No necessity here appears for any lengthy discussion of the details of, or evidence in, the case.

"The testimony on behalf of the State was ample-no error intervening-to support the verdict of guilt returned by the jury.

"But there was error committed on the trial, for which the judgment of conviction must be reversed.

"The State, as a part of its case, sought to show-in fact introduced testimony tending to show-flight on the part of the appellant after the commission (alleged) of the offense charged.

"Appellant, to refute this, testified that he spent the night of the alleged crime (it being claimed by the State to have occurred early in said night) with his father, in the neighborhood of the occurrence. The father did not testify on the trial.

"In this state of the evidence the bill of exceptions recites as follows: 'In his closing argument to the jury the Solicitor made the following statement: "It is a significant thing that his (defendant's) father was sitting there and he did not put him on the stand." Defendant objected to the argument and the court sustained the objection. The Solicitor continued in his argument: "That is a remarkable thing, gentlemen." Defendant objected to that statement, the court overruled the objection and the defendant duly and legally excepted."' (Italics supplied.)

The two statements are not of the same import, the ruling of the court was different as to each, and it does not affirmatively appear that they referred to the same incident. Therefore applying the universal rule that the recitals in the bill of exceptions will be construed most strongly against the exceptor, 9 Alabama Digest, Exceptions, Bill of, 519, + 26, the last statement, the basis of the error for reversal, was not a statement of fact, but an observation as to the evidence in the case. Moreover, assuming that the last remark referred to the failure of the defendant to put his father on the stand, the Solicitor was clearly within his rights in commenting on the fact. One so closely related to the defendant by blood is bound to be hostile to the State and can not be said to be as available to the State as to the defendant. Jackson v. State, 56 Tex. Cr. 28, 117 S.W. 990; 14 Am.Jur. 875, § 151; Com. v. Spencer, 212 Mass. 438, 99 N.E. 266, Ann.Cas.1913D, 559; 16 C.J. 904, § 2250.

The ruling of the court was therefore not erroneous.

The writ of certiorari is granted; the judgment of the Court of Appeals is reversed and the cause is remanded to that court.

All Justices concur.

On Rehearing.

BROWN Justice.

The defendant was indicted, and on his trial was convicted of the offense of robbery and sentenced to the penitentiary for twenty years as a punishment for the offense. The proceeding resulting his conviction and sentence are in all things regular and free from error, unless it can be said that the court committed error to reverse in overruling the defendant's objection to the statement of the solicitor "That is a remarkable thing, gentlemen." (Italics supplied.)

What the solicitor was referring to as "a remarkable thing" is not clear from the statements of the bill of exceptions, the recitals of which are quoted verbatim in the opinion of the Court of Appeals. The Justices here are divided as to the interpretation of the language. The Court of Appeals was of opinion that it referred to a previous statement of the solicitor in his closing argument, to which objection was sustained by the court, "It is a significant thing that his (defendant's) father was sitting there and he did not put him on the stand."

In a recent case, Schrimsher v. Carroll, 225 Ala. 188, 142 So. 547, 548, it is observed:

"The bill of exceptions must be construed most strongly against the exceptor. If it is susceptible to two constructions, one of which supports the judgment, and the other reverses it, it will be construed so as to support the judgment." Citing Kabase v. Jebeles Colias Conf. Co., 155 Ala. 254, 46 So. 581; McGehee v. State, 52 Ala. 224.

By reference to 9 Alabama Digest, Bill of Exceptions, pages 519-523, + 26, more than a hundred decisions by this court and the Court of Appeals sustain the holding quoted above, and this has been the rule consistently followed by this court since the January Term, 1848. Goodgame v. Clifton, 13 Ala. 583; 1 Brick.Dig. 251, § 126.

It would seem, therefore, that the logical result in the instant case, there being equal division, to follow the rule and resolve the doubt in favor of the judgment of the Circuit Court, and affirm.

But the defendant insists that this court is bound by the conclusion of the Court of Appeals. That contention is not sound. Where, as here, the Court of Appeals has quoted verbatim at litteratim the statement of the bill of exceptions, this court will construe the language, applying the settled rule, above stated. Craft v. Standard Acc. Ins. Co., 220 Ala. 6, 123 So. 271; Armstrong v. Blackwood, 227 Ala. 545, 151 So. 602; Central of Georgia Ry. Co. v. Purifoy, 226 Ala. 58, 145 So. 321; Ex parte Steverson, 211 Ala. 597, 598, 100 So. 912; Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339.

The opinion of the Court of Appeals states, in substance, that the evidence offered by the State was sufficient to warrant the jury in finding the defendant guilty as charged in the indictment. Therefore assuming that the statement of the solicitor in his closing argument, "That is a remarkable thing, gentlemen," referred to the same incident of the trial which occurred in the presence of the court and jury, the failure of the defendant to offer his father, who was present all during the trial, as a witness, to which first statement the court sustained an objection; the question is, was the overruling of the objection to the last statement error for which the judgment should be reversed?

It is well settled in this jurisdiction, in harmony with the great weight of authority that if a party has a witness possessing peculiar knowledge of the transaction, and is supposed to be favorable to him, and fails to produce such witness when he has the means of doing so, this, in the absence of all explanation, is a ground of suspicion against him that such better informed testimony would make against him. Carter v. Chambers, 79 Ala. 223; McGar v. Adams, 65 Ala. 106; Kilgore v. The State, 74 Ala. 1; Fincher v. The State, 58 Ala. 215; 1 Greenleaf Ev. § 82; Ann.Cas.1914A, 916-919.

As stated in the more recent cases: "Failure of a party to produce a witness may under some circumstances give rise to an inference that the testimony of the witness if called would not have been favorable to such party; but such failure is persuasive rather than probative and cannot be invoked as substantive proof of any facts essential to the case of his opponent." Stocker v. Boston & Main Railroad, 84 N.H. 377, 151 A. 457, 70 A.L.R. 1320, and notes 1326, 1330.

This court speaking through Stone, C. J., in Carter v. Chambers, supra, dealing with a special written charge to the jury, observed: "The second charge is too general and comprehensive in its terms. Carried to its extent, it would require of a suitor that he should produce all the witnesses, no matter how numerous they might be, who knew anything of the transaction; and failing to do so, to have the presumption indulged against him that such witnesses, if produced, would not support his right. There is a rule, and a just one, that if a party has a witness possessing peculiar knowledge of the transaction, and supposed to be favorable to him, and fails to produce such witness when he has the means of doing so, this, in the absence of all explanation, is ground of suspicion against him that such better informed testimony would make against him." (Italics supplied.)

This rule or doctrine was reiterated in the exact language of Chief Justice Stone, by the court speaking through Justice Sayre, and applied in Blue v. First Nat. Bank of Elba, 200 Ala. 129, 131, 75 So. 577.

This doctrine was again asserted and applied in Sewell v. Nolen Bank et al., 204 Ala. 93, 96, 85 So. 375, 378. It was there observed: "At the time of filing the bill and up to the trial, Marie N. Potts was a member of the respondent partnership, and the matters alluded to were important evidentiary facts in the keeping of the cross-complainant, the failure to produce which, or to account for their absence, casts suspicion on the bona fides of her claim." Citing Blue v. First National Bank, supra, and Carter v. Chambers, supra.

This doctrine was reiterated and applied in Alabama Power Co et al. v. Talmadge, 207 Ala. 86, 95, 96, 93 So. 548, 557, in justifying argument to the jury, that a failure of a party to produce an available witness, supposed to be favorable to such party, warrants an inference against him. We reproduce the...