Dollar v. State , 99 Ala. 236 ( 1892 )

HEAD, J.

Appellant was prosecuted and tried for selling liquor to a minor, contrary to the statute. The evidence of the State tended to show that defendant sold the minor a pint of whiskey in Columbiana, Shelby county, within twelve months before the beginning .of the prosecution. The solicitor, in his closing argument to the jury, used the following language : “I don’t know why it is, but Columbiana is worse cursed with the illegal sale of whiskey of any place I know of. Columbiana is trying to build up a school here, and who do you suppose would send his children to school in a place Where there is a grog-shop on every corner where they could get whiskey?” The defendant objected to these statements, on the grounds that there was no evidence to support them, and that they were calculated to prejudice the minds of the jury against the defendant; and moved the court to withdraw them' from the jury. The court overruled the objection and motion, and the defendant excepted.

We do not think a narrow or rigid rule should be laid down in restraint of the argument of counsel. Observation and experience show that jury trials rarely occur wherein counsel, in the zeal of discussion, are not led to indulge impertinent remarks, the expression of personal opinions, and often to draw illogical and improper deductions from the evidence. It often occurs, too, that counsel differ as to the testimony of witnesses, each insisting upon his recollection or version of facts which have been deposed to. In the interest of the ending of litigation, a wide range must be given to the arguments of counsel, and much must be left to the good sense and sound judgment of the jury, who will ordinarily be able, under proper instructions from the court, to give proper consideration to what has been said, and not suffer themselves to be influenced by outside and v irrelevant matters, and improper opinions and conclusions, drawn into the discussions before them. But there should be a limit placed upon this license. Counsel should not be permitted by the court, against the objection of the opposite party, to state as fact that of which there is no evidence whatever, and particularly that which is irrelevant to his adversary’s cause, and of which no evidence would have been received if offered, if the facts so stated are of such a character as that they are well calculated to impress the minds oi the jurors, or some of them, to the injury of the opposite party.

In the present case, the defendant was on trial for the single act of selling liquor to a minor. The gravity of his offense, and the punishment he should suffer, were to be determined by a consideration of his act in making this sale, and the circumstances which immediately bore upon that act in view of the evils which the law denouncing the offense intended to remedy. It was not proper to be considered, in determining his guilt and punishment, whether Columbiana was worse cursed with the illegal sale of whiskey than any other place known to the solicitor, or that Columbiana was trying to build up a school, or that there was a grog-shop on every corner where children attending the school could get whiskey*; yet the solicitor was permitted to state these things of which there was no evidence, and could have been none, as facts to influence the jury, either in ascertaining the guilt of the defendant, or in awarding his punishment. We think they went beyond the domain of legitimate argument, so far as that the defendant was probably prejudiced by them.

We do not mean to say that the solicitor may not comment upon the evils generally of the crime which the law he is seeking to enforce intends to prevent; but he goes beyond this when he gi'atuitously states to the jury, as fact, the existence of particular evils, in the locality of defendant’s offense, and to which that offense is supposed by him to be related. The defendant’s guilt must be determined by the facts touching the particular act with which he is charged, and, as we have said, his punishment must be determined by the nature of the act committed, and a consideration of the evils generally resulting from the commission of such acts, within the limits prescribed by law.

The. other remarks of the solicitor, to which objection was made, seem to have been called forth by impertinent comments of defendant’s counsel in reference to the fees of the solicitor, and do not constitute cause of reversal.

Eor the error mentioned, the judgment must be reversed, and the cause remanded.