Gardner v. State , 17 Ala. App. 589 ( 1920 )

The writer is constrained to dissent from the conclusion reached by a majority of this court. My dissent is predicated on the questions of law as dealt with by the majority, as well as upon the questions of fact. As to the latter, however, I shall content myself by stating that in my opinion the facts contained in the record and the inferences to be drawn therefrom do not show, by the high degree of proof necessary to a conviction, that any crime has been committed; furthermore, the identity of the defendant as shown by the testimony is very vague and uncertain. I recognize that the views of an individual judge on questions of fact are of but slight concern to any one unless, of course, such views are adopted by at least a majority of the court; therefore I shall refrain from dealing specifically with the to me patent discrepancies so clearly apparent in this connection, and shall content myself by stating that in my opinion the case against defendant was not made out, and that the affirmative charge requested by him should have been given.

The proposition of law upon which I differ with my Associates is the ruling of the court upon the objections interposed to the argument of the solicitor. There were three separate and distinct statements of the solictor made in argument to which timely objections were interposed and proper motion made for their exclusion; the court in each instance ruling adversely to the defendant. The statements were as follows: (1) "Gentlemen, are you going to allow that pickpocket sitting over there (referring to defendant) to go free?" (2) "They don't like for me to call Joe (the defendant) a pickpocket." (3) "This defendant is a pickpocket and has been following this circus around."

While I am clearly of the opinion that each of these statements were unauthorized and not legitimate arguments, as they were statements of facts, not predicated upon the evidence, and that it did not lie in the mouth of the solicitor to decide these vital questions, to the contrary this most important duty devolved upon the jury, I cannot see where there is room for doubt or argument as to the statement numbered (3) quoted above, "This defendant is a pickpocket and has been following this circus around." Whether the defendant was a pickpocket was a question for the jury to decide from all the evidence in the case, but even the jury were not authorized to find that "the defendant had been following this circus around," as there was absolutely no evidence of any character in the entire record to support such a finding, and therefore the solicitor brought himself within the inhibition of the rule which prescribes the limits of fair discussion; the rule being that "the statement must be made of fact; the fact stated must be unsupported by any evidence and must be pertinent to the issue, or its natural tendency must * * * be to influence the finding of the jury." Cross v. State, 68 Ala. 476. As before stated, there was nothing in the record authorizing this unwarranted statement of fact. That it was pertinent to the issue and its natural tendency calculated to influence the finding of the jury cannot be questioned. I refrain from a reiteration, so often expressed, of the duty devolving upon a trial judge in questions of this character, realizing he is called upon to perform a responsible and at the same time a very delicate duty when passing upon the freedom of counsel in the argument of their cases, but do think that when, as in this instance, there occurs an unwarranted abuse of this freedom of argument and privilege of counsel, the trial judge not only should interfere and restrain such abuse, but, if it should appear necessary, should rebuke counsel guilty thereof, and he should by positive and explicit instructions disabuse, as far as practicable, the minds of the jury of any prejudicial impression engendered thereby or which were calculated to be thus engendered. I am of the opinion that the test should be, not that actual injury resulted, but was the unwarranted statement calculated to or might it have created such prejudicial impressions upon the minds of the jury?

The rulings of the court excepted to in this connection were error and should effect a reversal of the judgment of conviction, and the cause should be remanded in order that the defendant should be accorded a fair and impartial trial by jury upon the evidence in the case, and not, as here, be tried upon the unwarranted and unauthorized statements of fact by the solicitor which were wholly unsupported by any evidence adduced upon the trial.