Thacker v. State , 3 Okla. Crim. 485 ( 1910 )

Two specifications of error are averred in the petition. The first is that "the court erred in refusing the request of the defendant to have the official court stenographer report the statements made by the jurors on their examination, as to their qualifications to serve as jurors in said cause." The record discloses that, when the case was called, both parties announced ready, and the "attorney for defendant requests the court to have the official stenographer take down the examination of the jurors, which request was refused, and the court stated if there is any objection to any juror the attorney may have the same taken down and put into the record. To which defendant excepts."

It is urged that under section 5859, Snyder's St. 1909, this ruling of the court is reversible error, "without regard to the merits thereof." Said section provides:

"It shall be the duty of the court reporter to take down in shorthand, and to correctly transcribe, when required, all the proceedings upon the trial of any cause, as well as all statements of counsel, the witnesses and the court, made during the trial of any cause or with reference to any cause pending for trial, when required by a party or attorney interested therein, and all other matters that might properly be a part of a case-made for appeal or proceeding in error. An attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer or when his presence is required by such attorney, shall be taken and transcribed. A refusal of the court to permit, or, when requested, to require any statement to be taken down by the stenographer, or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof."

The assignment is without a shadow of merit. The record shows that there was no objection made to any member of the jury selected.

The second relates to alleged misconduct and prejudicial remarks made by the county attorney in his closing argument to the jury, as follows:

"Counsel for defendant stated that: (1) That if defendant had been a bootlegger, the state could certainly find more than one witness to prove the same. Why, gentlemen of the jury, the reason I did not introduce other testimony was, because I would not be allowed to do so; I would not be permitted to prove other sales under the law. (2) We have the defendant here in the `joint business.' He admits he has been in the joint business for a number of years, and after objection and exception had been taken by counsel to the above remark, the county attorney replied: `Yes, you object; you put a cocklebur under a jackass' tail, and he will always squeal.' (3) The witness said that he took a bottle of whisky from the defendant, and that he afterwards offered to pay him for it, and I tell you, gentlemen of the jury, that this defendant knew that this man had been subpoenaed before the grand jury, and this case was set for trial, and of course this defendant was not going to take the money. (4) I say that it is my belief that he had this whisky, and that he sold it to this young man, and that he received the money for it. (5) They say that the prosecuting witness corroborates the defendant out of court, and that he told Frank Marshall that the only whisky transaction he ever had with the defendant was the time the whisky was taken out of defendant's pocket. Yes, gentlemen of the jury, there was a concocted scheme between the defendant and the witness Marshall to get the prosecuting witness to that barber shop and get that statement out of him. To which remarks of the county attorney the defendant then and there objected and excepted."

The first remark was proper in answer to the argument made by counsel for defendant.

The second remark was properly predicated upon the defendant's testimony. A prosecuting attorney in his argument has the right to draw such inferences or conclusions from the evidence as his reason may dictate, if warranted by the facts shown. As for the repartee indulged in, evidently the simile was more expressive than elegant, yet, while such conduct is not commendable and might deserve the rebuke of the trial court, it does not constitute reversible error.

The third remark was within the bounds of legitimate argument. A prosecuting attorney cannot be charged with misconduct in urging a theory as to defendant's acts or motive, where there is some evidence to support it.

The fourth remark being an expression of the opinion as to the guilt of the accused by the county attorney should be construed as being an expression of his personal opinion as to the weight of the evidence, and was therefore not objectionable.

The fifth remark was not objectionable, as the county attorney has the right in his argument before the jury to discuss all the facts bearing upon the issue within the scope of the evidence.

As a matter of good practice, where improper remarks are made by the prosecuting attorney in his argument before the jury, when an objection thereto is interposed, and a ruling of the court invoked, the court should be requested to charge the jury to disregard such improper argument or statement.

In an elaborate argument covering 30 closely printed pages of this brief, counsel for defendant has collated the authorities in support of his contention. We cannot take the time to review these authorities, but our examination shows that as a rule each case turns on its own particularities. This court declared as a general rule in the case of Reed v. State, 2 Okla. Cr. 589,103 P. 1042:

"The remarks of counsel must be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must have been such as may have influenced the verdict." It is our opinion that the defendant has had a fair and impartial trial.

The judgment of the county court of Grady county is therefore affirmed, with direction to cause the judgment and sentence to be carried into execution.

FURMAN, PRESIDING JUDGE, and OWEN, JUDGE, concur.