Phillips v. State

I am of opinion that it was error for the court to permit special counsel for the prosecution, after the evidence was closed and after it had been determined that other counsel would make the argument for the state, to read in the presence of the jury an excerpt from the opinion of the Court of Appeals in Wade v. State, 18 Ala. App. 322, 92 So. 97, 99, embodying the following statement:

"The defense of insanity in this case, to say the least of it, appears to be a crude quality of camouflage. The evidence in support of it is barely sufficient to authorize the submission of that question to the jury. Trial courts cannot be too careful in seeing to it that this humane defense permitted by law is not prostituted and used as a cloak to shield a criminal in distress. Juries should not be misled by references to irresistible impulses. They may well look with suspicion on non-expert opinions given by close relatives and well-wishing friends that claim to have observed mental peculiarities for some period of time prior to the commission of the crime, but who have not taken any steps towards having the defendant detained or restored through the intervention of scientific treatment. A man sufficiently unbalanced to be excused from the penalty for crime is sufficiently unbalanced to be the object of solicitous care on the part of intimate friends and relatives as a general rule.

"An irresistible impulse generated by wicked propensities will not excuse the violation of law. Depravity is not a disease. High temper, hot blood, and passion are not such mental ailments as will excuse the commission of crime. * * *."

The reading of the above statement was permitted after counsel for the defendant had requested that the jury be allowed to retire, which request was denied, and then counsel objected to said reading from said opinion. The manifest purpose of this character of argument was to invite comparison between the facts in the Wade case and the case on trial and to prejudice the jury against the defendant's case. The statement of the court to the jury was not sufficiently strong to eradicate the damaging consequences of this act. And there is no doubt in my mind but what this strongly tended to prejudice the jury against the defendant's defense of insanity. The insistence that this excerpt was read to the court for "his consumption" and enlightenment is the purest of camouflage. The jury was not instructed not to consider the statements of facts embodied in the excerpt from the opinion of the Court of Appeals read in their presence. Western Union Tel. Co. v. Benson, 159 Ala. 254, 275, 48 So. 712; Louisville N. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; Davis v. State, 213 Ala. 541,105 So. 677; Stewart v. State, 78 Ala. 436; Williams v. State, 83 Ala. 68, 3 So. 743; Yarbrough v. State, 105 Ala. 43,16 So. 758; Walkley v. State, 133 Ala. 183, 31 So. 854.

For this error, in my judgment, the defendant should have a new trial. I, therefore, respectively dissent on this point.