Cross v. State , 68 Ala. 476 ( 1881 )

STONE, J.

Counsel has not insisted on the third charge asked by defendant and refused, and, in effect, concedes it was rightly refused by the Circuit Court. It is very clear that charge should not have been given. Parties are presumed to intend the natural consequences of their intentional acts. Two witnesses testify positively that, a short time before the shooting, the accused informed them the gun was loaded. We are not informed the gun was fired off, between that time and the homicide. The only evidence against this is, that the accused, after he had fired the fatal shot, and after he was upbraided for killing the deceased, said it was an accident, and that he did not know the gun was loaded.- He repeated this assertion several times, made no attempt to escape, and remained, rendering some service in placing the wounded man on a bed. Crime is made up of act and intention. The jury are the proper judges of testimony, and triers of facts. Motives and intentions are rarely susceptible of positive proof. It is the province of the jury to weigh testimony, and deduce inferences from proven facts. Motives and intentions are inferred not alone from the language of parties. Actions, manner, tone of voice, startled surprise at so fearful a catastrophe, if accidental— all these .enter into the inquiry, whether the shooting was intentional or not. These were questions for the jury. The testimony did not present a case for a charge on its effect. 1 Brick. Dig. 335, § 3, subd. 1 and 4.

Charges 1 and 2 requested were properly refused. There seems to have been no question raised as to the person or instrumentality by which the homicide was perpetrated. Neither is there question that the gun was intentionally pointed, and the trigger pulled by the the defendant. From these uncontroverted facts, the law infers malice, unless exculpatory circumstances spring out of the testimony which proves the killing, or unless justification, or a reduction of the grade of the offense, is shown by other testimony. Motive is one, but not the only, means of proving malice. It may, often is, and should be inferred, from the absence of sufficient extenuating circumstances.—Hadley v. The State, 55 Ala. 31. The most aggravated murders have been committed when the motive, could be neither proved nor ascertained. So, even if the accused believed the gun to be unloaded, the death would then be traceable to a very careless, if not wanton act, and the defendant could not be pronounced innocent.—Clark’s Manual, §§ 448, 449. In any aspect, the charges were properly refused.

The remaining questions relate to the latitude counsel were allowed to take, in the discussion before the jury. We approach this subject with much misgiving, and fear we will not be able to make ourselves understood. Defendants have the right to be heard by themselves and counsel. The constitution secures this much to them. In addressing the jury, counsel must be allowed to select and pursue their own line of argument, their own methods of dealing with the testimony. They may state the principles of law applicable to the case, and may argue such principles, and quote from books in elucidation of their views of the law. This, however, is an argument before the court, and for the court; for the jury are not judges of the law. It is their sworn duty to receive and apply the law as the same is given them in charge by the court. The presiding judge has the same right and power to declare — authoritatively to declare — the law, as juries have- to find the facts. Neither should or can invade the province of the other, without a breach of duty, and without detriment to the time-sanctioned theory of judicial trials. A known or intentional invasion by either, of the domain of the other, would be a gross violation of a sworn duty. Crime is made up of act or acts-and intent. The law declares what particular acts, done with what particular intents, constitute the various crimes known to our criminal jurisprudence. All the graver offenses are graded both by the motive or intent which prompts them, and the magnitude of the injury done. Counsel, we have said, may state the principles of law applicable to the case on trial; for those principles furnish the rule or test, by which juries must determine whether the facts proved meet the requirements of the law. Not knowing what the law is, or what its requirements are, until instructed, the jury could not safely affirm that the prisoner they have in charge is, or is not guilty. Law furnishes the rule, and the jury determines whether the facts proved bring the case within that rule.

No human testimony is infallible. The most conscientious witnesses sometimes make mistakes. Friendship or prejudice often biases the judgments of even honest men, and witnesses often allow their predilections to shade their narratives. Here are seen and felt the beneficial effects of cross-examination. No set rules can be declared, fixing, the boundaries of legitimate cross-examination. Much depends on the character of the testimony given, and the spirit of the witness exhibited in his testimony. A further preliminary remark: A large amount of the facts, which shape and mould; human transactions, are not susceptible of direct proof. They are inferred from other facts known or proved. Experience and observation come to our aid, in ascertaining these inferential facts. Motives and' intents- are roost generally arrived at, by duly considering the outward conduct of men. Testing this, by our experience and consciousness,, we infer the moving motive which prompted such conduct.

We have indulgedin these preliminary observations, because they bring, somewhat to view the wide range advocacy should be permitted to take. Every fact the testimony tends to prove, every inference counsel may think arises out of the testimony, the credibility of the witnesses, as shown by their manner, the reasonableness of their story, their intelligence, means of knowledge, and many other considerations, are legitimate subjects of criticism and discussion. So, the conduct of the accused,- his conversation (if in evidence), may be made the predicate of inferences, favorable or unfavorable. Analogies and illustrations may also be drawn, based on the testimony, on public history, on science, or anything else, provided it does not invade the prohibited domain hereafter considered. The presiding judge, as a rule, will best determine when discussion is legitimate, and when it degenerates into abuse and undue license. While he should not permit wanton abuse of adversary or witness, he would occupy questionable ground, if he arrested counsel in his attempt to educe inferential facts or intents, from testimony in proof. Argument is but an aid to the jury, to enable that body to arrive at correct conclusions; and it would be dangerous to accord to the presiding judge the right and power to intervene, and declare authoritatively when an inference of counsel is or is not legitimately drawn. This is for the jury to determine, if there be any testimony on which to base it. Só, we hold counsel is in legitimate bounds, when he urges a firm and fearless administration of the- criminal law, as the great conservator of human life, and of the repose of society ; and is not within reversible grounds, when he complains generally that juries are frequently more inclined to mercy than to judgment. On the other hand, counsel may warn juries against hasty or harsh verdicts, and may invoke the humane mercies of the law, which accords to persons accused the saving benefit of all reasonable doubts. These pertain to municipal law, and to that grand public policy which is the boast and crowning honor of the common law. We ourselves have felt, and still feel, that the criminal law, notably the law of homicide, is often administered with too light a hand. This, instead of being a means of preserving human life, has a tendency directly the opposite. When juries learn that self-defense means self-defense, and not a mere vindication of insulted honor, real or supposed — means that the manslayer is so pressed and menaced, as that his life is in danger, or his person exposed to grievous bodily harm, as the law defines that phrase, before he can resort to deadly instrumentalities ; then the moral and law-abiding public will cease their complaints against the law’s administration. Then, and not till then, will the lawless and bloody-minded stay thier murderous hands.

In a single instance we think the presiding judge permitted counsel to transcend the legitimate boundary of discussion. In his closing argument, the prosecuting attorney was allowed to state, as facts, what he alleged had occurred in the perpetration of another homicide having some alleged features analogous to those developed on this trial. Now, there was not only no evidence before the jury of that other homicide, or its details, but such evidence, if offered, would have been illegal and irrelevant. This was not argument, and could furnish no safe or permissible aid to the jury in considering, and weighing the testimony before them. The jury, in their deliberations, should consider no facts, save those given in evidence. They may and should employ their reasoning powers, aided by their experience, and by the arguments of counsel, in determining what facts the testimony establishes. This is the high purpose for which they are organized, the duty they are sworn to perform. If they allow outside influences to* control them, they do as great a wrong, although, perhaps, not committing so high a crime, as if they return a verdict against their convictions of the evidence, and the law as expounded to them by the court. We adopt the language of the court in Brown v. Swineford, 44 Wisc 282, that "it is error sufficient to reverse a judgment, for counsel, against objection, to state facts pertinent to the issue and not in evidence, or to assume, arguendo, such facts to be in the case, when they are not •”' and if the statement be of facts which would not be legal evidence, if offered as such, yet, if their natural tendency is to influence the Ending of the jury, the same rule would apply. We sum up, lest we be misunderstood. There must be objection in the court below, the objection overruled, -and an exception reserved. The statement must be made as of fact \ the fact stated 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. To come within the last clause above, namely, where the natural tendency is to influence the finding of the jury, the case must be clear and strong. We would not embarrass free discussion, or regard the many hasty or exaggerated statements counsel often make in the heat of' debate, which can not, and are not expected to become, factors in the formation of the verdict. Such statements are usually valued at their true worth, and have no tendency to mislead. It is only when the statement is of a substantive, outside fact — stated as- fact — and which, manifestly bears on a material inquiry before the jury, that the court can interfere, and arrest discussion.—McAdory v. The State, 62 Ala. 154; Tucker v. Heniker, 41 N. H. 317; Scripps v. Reilly, 35 Mich. 371; Berry v. The State, 10 Ga. 511; Mitchum v. The State, 11 Ga. 615; State v. Smith, 75 N. C. 306.

We append to this opinion an extract from the opinion of the court by C. J. Ryan in the case of Brown v. Swineford, supra. It presents in strong, terse, eloquent language, the high mission of attorneyship, and the pure ethics which a profession so influential and so honored should always observe when dealing with human liberty and human rights. We adopt its utterances only to tbe extent above expressed, and leave to the discretion of the presiding judge the suppression of all abuses, or seeming abuses, beyond what we have herein above declared presents a ease for review and reversal. We need scarcely add, the rules we have declared above apply equally to prosecuting attorneys, and to counsel ■employed in defense.

“ The profession of the law is instituted for the administration of justice. The duties of the bench and bar differ in kind, not in purpose. The duty of both alike is to establish the truth, and to apply the law to it. It is essential to the proper administration of justice, frail and uncertain at the best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensie strife is but a method, and a mighty one, to ascertain the truth, and the law governing the truth. It is the duty of counsel, to make the most of the case which his elient is able to give himbut counsel is out of his duty and his right, and outside ■of the principle and object of his profession, when he travels out of his client’s case, and assumes to supply its deficiencies. Therefore is it that the nice sense of the profession regards with such distrust and aversion the testimony of a lawyer in favor of his client. It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client; but he is outside of his duty and his right when he appeals to prejudice irrelevant to the ease. Properly, prejudice has no more sanction at the bar, than on the bench. But an advoeate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client’s prejudices against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to prejudices, just or unjust, against his adversary, dehors the very case he has to try. The very fullest freedom of speech, within the duty of his profession, should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. It may sometimes be a very difficult and delicate duty to confine counsel to a legitimate course of argument. But, like other difficult and delicate duties, it must be performed by those upon whom the jaw imposes it. It is the duty of the Circuit Courts, in jury trials, to interfere in all proper cases of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence, exception may be taken by tbe other side, which may be good ground for a new trial, or for a reversal in this court.”

Eor the single error above pointed out, the judgment of the Circuit Count is reversed, and the cause remanded. Let the defendant remain in custody, until discharged by due course of law.