Williams v. State, 1 Div. 194

• Decision Date: 15 December 1936
• Docket Number: 1 Div. 194
• Citation: 171 So. 386,27 Ala.App. 293
• Parties: WILLIAMS v. STATE.
• Court: Alabama Court of Appeals

171 So. 386

27 Ala.App. 293

WILLIAMS v. STATE.

1 Div. 194

Court of Appeals of Alabama

December 15, 1936

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Son Williams, alias Spider, was indicted of murder in the first degree and interposed pleas of not guilty, and not guilty by reason of insanity. On the trial he was convicted of murder in the second degree and sentenced to a term of ten years in the penitentiary, and he appeals.

Affirmed.

In murder prosecution, leading questions asked by prosecuting attorney while examining state's witnesses was within discretion of trial court.

State's witness Henry Harper, on recross-examination, testified that he had not talked to any one about the case, and on redirect examination reiterated this statement. On recross-examination he stated, "I did say I talked in the lower court"--preliminary hearing in inferior court. Whereupon he was asked: "You may be just as confused about the details as you were about that?" Objection to this question was sustained, and the ruling is made the basis of assignment 8.

State's witness Jones testified on cross-examination, "I did not ever know him to have any hard feelings against either one of those darkies," meaning the parties shot. He was then asked, "He had been good to them?" The court sustained the State's objection to this question, and the ruling is made the basis of assignment 9.

Further assignments of error are as follows:

10. The court erred in overruling the objection of the defendant to the question: "Have you made a special study of insanity?" propounded by the state to the witness Dr J.M. Weldon (Transcript, p. 35).

11. The court erred in overruling the objection of defendant to the question: "Would you say because a man got in a skin game and had some kind of argument about a quarter that belonged to somebody else, would you say that he was insane because of that?" propounded by the state to the witness Dr. J.M. Weldon (Transcript, p. 35).

12. The court erred in overruling the objection of defendant to the question: "Merely because he took a quarter that didn't belong to him and they made him give it back and he pulls out his pistol and drops it in the sand and tries it and turns around and shoots at them because they made him give it back, would you say that he was insane?" propounded by the state to the witness Dr. J.M. Weldon (Transcript, p. 36).

Rosa Gerhardt, of Mobile, for appellant.

A.A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

SAMFORD, Judge.

It is conceded by appellant's counsel, in brief, that the sole question in this case arises on the defendant's plea of "not guilty by reason of insanity."

The first and most insistent argument of appellant's counsel is grounded on assignments of error 25, 26, 27, 28, 29, 30 31, and 32, all of which relate to the argument of the solicitor in presenting the case to the jury and in his final address.

The first of these objections is stated as follows: "During Solicitor Chamberlain's argument to the jury, Miss Gerhardt, counsel for defendant, interposed objection to the solicitor's mapping out the defense, or the manner in which the defense attorney handled the case." This objection is so general that there is nothing for this court to pass upon. Objections of this character must be specific, so that the appellate court may know what was said and done on the trial of the case.

The other objections contained in the assignments of error above set out relate to a statement by the solicitor to the jury in closing his argument, as follows: "They have no evidence and they ask you to go out and bring a verdict of not guilty by reason of insanity and say 'here is your pass--go free.' " In this connection, we are cited the case of Boyle v. State, 229 Ala. 212, 154 So. 575, 587, in which the Supreme Court held as error a statement by the prosecuting officer as follows: "If you find this defendant not guilty by reason of insanity Dr. Partlow will be the man who will afterwards have to consider and pass upon the question of sanity." The instant case presents a very different proposition and is but the expression of an opinion on the part of the prosecuting attorney as to the effect of the verdict, without burdening the case with a subsequent consideration by some other agency. With the fragment of the solicitor's argument set out in the bill of exceptions, we cannot say that it was such a statement as not to be legitimate argument in the trial of this case.

The statements of the solicitor objected to do not come under that class of cases where the prosecuting officer makes statements of fact outside of the record. In this case, the excerpts are mere exhortations to the jury to render a verdict in accordance with the insistences of the State and therefore are within the bounds of legitimate argument. In Hobbs v. State, 74 Ala. 39, 41, Stone, Chief Justice, and in Mitchell v. State, 114 Ala. 1, 5, 22 So. 71, Brickell, Chief Justice, have both issued timely warnings to trial courts not to exercise too severe censorship over the line of argument counsel may pursue in...