Peterson v. State , 231 Ala. 625 ( 1936 )

If the defendant's right to a fair trial by an impartial and unbiased jury on competent and legal evidence depended on whether or not he used scientific or humanitarian methods in committing the crime, we might agree that the statement of facts by the solicitor in his opening argument, to which specific objections were made, could be disregarded because of "all the gruesome facts of the case." But this is not the law.

No matter how callous, brutal, and "gruesome" the offense, the defendant, nevertheless, under our law, is entitled to a fair and impartial trial on legal evidence, and is attended by the presumption of innocence until by the evidence his guilt is proven beyond a reasonable doubt.

Moreover, the important function of determining, not only his guilt, but, in homicide cases, of fixing the degree of the murder and the punishment therefor, is imposed on and vested in the jury. And such statements as, "That no man had ever yet served out a life sentence in the penitentiary" and "that if they [the jury] did sentence him to the penitentiary a mushy parole board would let him out in a little while, and that it had been his experience that murderers did not stay there long; that while there in the penitentiary things were made easy for them by baseball games, radios and good times and good treatment and good things to eat and a clean place to sleep and that for a murderer like the defendant a penitentiary would not be punishment," coming from an able and experienced solicitor elected by the people to represent the state, were enough to sweep the jury off its feet and prevent calm deliberation in determining the issues in the case.

Such facts were not competent or material to the issues in the case, and could not be put before the jury in any other way than through the statement of counsel. Nor could their influence be removed by the action of the court in sustaining the objections and instructing the jury "that such remarks were improper and not to consider them." This mild remark was not a sufficient antidote. Birmingham Railway, Light Power Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas. 1914C, 1037; Tannehill v. State, 159 Ala. 51, 52, 48 So. 662. In the case last cited, this court, speaking through Simpson, J., observed: "It is the duty of the court to see that the defendant is tried according to the law and the evidence, free from any appeal to prejudice or other improper motive, and this duty is emphasized when a colored man is placed upon trial before a jury of white men. Courts in some other jurisdictions have held, on what seems to be good reason, that the injury done by such remarks cannot even be atoned by the retraction or the ruling out of the remarks." And in Moulton v. State, 199 Ala. 411,74 So. 454, the practice was emphatically disapproved and the cause reversed. The question is properly presented by the defendant's motion for new trial, which was overruled and exception reserved. Birmingham Railway, Light Power Co. v. Drennen; Moulton v. State, supra.

It was stated in argument at the bar, on submission of this case, that counsel appointed by the court were young and without experience. The bill of exceptions shows that one of the lawyers so appointed was not present; that the other requested time to examine the indictment and consult the defendant before being required to plead. The court granted time, but limited it to five minutes. This was the same as a refusal to grant time. If the defendant was entitled to the appointment of counsel to represent him, under the provisions of section 5567 of the Code 1923, his counsel were entitled to reasonable time, before pleading, to consult with each other.

I am therefore of the opinion that the judgment should be reversed.

FOSTER, J., concurs in the foregoing dissent, except as to the last paragraph which deals with the refusal of the court to grant more than five minutes' time to counsel to consult.