Pickrell v. State , 5 Okla. Crim. 391 ( 1911 )

It is insisted by counsel for plaintiff in error that the persistent asking of incompetent, improper, and prejudicial questions by the county attorney, after previous objections thereto having been made and sustained by the court, constitutes reversible error, citing:

12 Cyc. 572; Cargill v. Comm., 13 S.W. 916; Clark v. State, 5 S.W. 115; State v. Rose, 76 S.W. 1003; People v. Derbert,71 P. 564; Heller v. People, 43 P. 124; People v. Wells,34 P. 1078.

We believe the action of the prosecuting attorney, as shown by the record, constitutes misconduct on his part prejudicial to the substantial rights of the defendant, such conduct was clearly calculated to prejudice the minds of the jury and manifested a disposition to disregard the legal rights of the defendant, and should have been promptly condemned by sustaining the motion for a new trial.

Adopting the language of Mr. Justice McFarland in the case ofPeople v. Wells, supra:

"It would be an impeachment of the legal learning of the counsel for the people to intimate that he did not know the question to be improper, and wholly unjustifiable. Its only purpose, therefore, was to get before the jury a statement, in the guise of a question, that would prejudice them against appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider. The prosecuting attorney may well be assumed to be a man of fair standing before the jury, and they may well have thought that he would not have asked the question unless he could have proved what it intimated if he had been allowed to do so. He said plainly to the jury that Hamlet did not want his friends to say: ``As, "well we know"; or, "we could, an if we would"; or, "if we list to speak"; or, "there be, an if there might."' This was an entirely unfair way to try the case; and the mischief was not averted because the court properly sustained the objection, — though we think it should have warned counsel against the course which he was taking, — and instructed the jury specially on the subject. The wrong and the harm was in the asking of the question. Of course, in trials of criminal cases, questions as to the admissibility of evidence will frequently arise about which lawyers and judges may fairly differ in opinion; and in such cases defendants must be satisfied when courts sustain their objections. But where the prosecuting attorney asks a defendant questions which he knows, and every judge and lawyer knows, to be wholly inadmissible and wrong, and where the questions are asked without the expectation of answers, and where the clear purpose is to prejudice the jury against the defendant in a vital matter by the mere asking of the questions, then a judgment against the defendant will be reversed, although objections to the questions were sustained, unless it appears that the questions could not have influenced the verdict."

The offer to introduce the records of the county court showing the number of cases pending against a former employer of the defendant and the taking of an exception to the ruling of the court thereon were wholly improper. The court had three times sustained objections to this line of testimony, but the prosecuting attorney still persisted in the course he had taken. He could have had but one motive in view in the course pursued by him; that was to prejudice the jury against the defendant. Certainly it cannot be said, in view of the improper conduct of the prosecuting attorney, that the defendant in this case had that fair and impartial trial prescribed by law. It is the duty of the prosecuting attorney to see that the defendant shall have a fair and impartial trial, and that he shall be convicted only by competent evidence, and to secure this he should himself be fair and impartial.

The only evidence in the case against defendant was the uncorroborated testimony of one Turner, an itinerant informer, who styles himself a private detective. All good citizens have an interest in the vindication of public justice and maintaining the majesty of the law. It is a matter of common knowledge that the most potent factor of the dishonest dispensation of justice is the production of untruthful testimony upon the witness stand. Generally speaking, a private detective is not over scrupulous in the truthfulness of his testimony, and such evidence should be viewed with caution, as it may not be entitled to very much credence.

Chief Justice Maxwell has well said:

"It is doubtful if anything is really gained in the administration of the law from the admission of such testimony, and the consequent encouragement of the courts of the practice."(Heldt v. State, 20 Neb. 492, 57 Am. Rep. 835.)

However, the weight and credibility of such evidence are questions for the jury, and where a conviction is had upon the uncorroborated testimony of a private detective the courts can only look carefully to the record to see that no prejudicial error has occurred. Here defendant, as a witness on his own behalf, denied the sale and called several witnesses whose testimony tended to prove an alibi; others who testified to his good character as a law-abiding citizen. Nevertheless, the credibility of defendant was an important matter in the case, and whatever evidence tended to impair that credibility was material in the highest degree. That the misconduct of the prosecuting attorney so tended is clear. His persistent efforts to get before the jury the charges against Bondurant, taken in connection with the testimony that defendant had been working for him, tended to create the impression that defendant might be selling whisky for Bondurant. We believe that the rebuke administered by the court below did not remove such impression, as the prosecuting attorney promptly excepted to the action of the court, thus leaving with the jury the impression that he had been grossly outraged by the rulings of the court. Such conduct tends to destroy public respect for the prosecuting attorney's office and invites contempt for the dignity of the court. A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.

For the reasons stated, the judgment of the county court of Grady county is reversed, a new trial awarded, and the cause remanded.

FURMAN, PRESIDING JUDGE, and ARMSTRONG, JUDGE, concur.