Andrews v. State , 99 Fla. 1350 ( 1930 )

While there was testimony sustaining the verdict of guilt, there was to my mind also testimony which if believed would have sustained a verdict of not guilty on the ground of self defense. It was, therefore, a question for the jury to decide, under instructions by the court as to the law, and after a fair opportunity had been afforded to both the State and the defense to argue the case.

But it does not seem to me that the defendant was given that full and fair opportunity for argument which the law contemplates.

When it came time to argue the case, the acting solicitor stated that he would waive the opening argument. Defendant's counsel objecting to this course of procedure, the acting solicitor made the following statement to the jury as constituting his alleged opening argument:

"When I make my main argument after Judge Farris has made his argument I will endeavor by this evidence to show you that the State has met all the legal burdens as to proof in this case: That we have established by competent evidence all the material allegations of this information beyond and to the exclusion of every reasonable doubt, and that we have established by the evidence that on the date alleged in the information, the defendant, Ben Andrews, slew the deceased, Earl Brady Dyal, by an act imminently dangerous to another and especially to the said Earl Brady Dyal, and evincing a depraved mind regardless of human life and neither justifiable or excusable homicide, and that such slaying was second degree murder, and that is the verdict I shall, on behalf of the State, ask you on the evidence in this case to find when the case is finally submitted to you. With this statement of the position of the State in the matter I will leave it with you until Judge Farris has made his argument, when I shall then more fully present the evidence to you."

Counsel for the defendant excepted on the ground that by this statement the acting solicitor "had failed to outline to the jury in the proper form of argument the contentions of the State, he having the concluding argument, so that the defendant may have full opportunity through his counsel to reply to such arguments as may be made. We insist that the acting solicitor argue his case," etc. It think this exception was well taken, and that it raises a very important question.

This was made one of the grounds of the assignments of error, as well as of the motion for new trial, to which latter was appended as an exhibit and affidavit of counsel for defendant, in which it is further alleged that the acting solicitor, after counsel for defendant had made his argument, argued the case for more than an hour, and that his contentions were not justified by the evidence and could have been fully answered by counsel for defendant if he had been given an opportunity to do so; that the jury were misled by the concluding argument and reached an erroneous conclusion. Of course, this last clause was merely the opinion of counsel.

It must be admitted, however, that the so-called "opening argument" of the prosecuting attorney was not an argument at all, but was little more than an outline of the charge made in the indictment, together with the statement that the evidence submitted proved every material allegation thereof, and that he would on that evidence ask the jury to find the defendant guilty as charged.

In S. A. L. Ry. Co. v. Rentz, 60 Fla. 449, 54 So. R. 20, this Court, in an opinion by Justice HOCKER concurred in by all the members of the Court, said:

"When this case came up for argument the plaintiff's counsel, who had the opening and conclusion, in his opening statement simply announced that the evidence sustained his case, and cited one authority to show that the allegation in the declaration as to the time of delivery of the mules to the initial carrier, was not an issue. Defendant's attorney requested the plaintiff's attorney to argue the evidence. Defendant's attorney also moved the referee to require plaintiff's attorney to argue the evidence and cite the law upon which he relied. This motion the referee denied, and the defendant's attorney excepted. It then appears from the record that defendant's attorney argued the law and facts from his standpoint. Then the plaintiff's attorney argued the case. Defendant's attorney then offered to reply to the argument of the plaintiff's attorney, and the latter objected, and his objection was sustained. These several rulings afford the basis for assignments of error. The plaintiffs in their brief seem to regard this as a very trifling matter indeed, and quote no authority to sustain these rulings. The defendant's attorneys in their brief argue mightily that defendant was deprived of its right to discuss the plaintiff's argument, but no authority whatever is cited. The writer has spent several days in examining this question, and his conclusion is, that while the authorities are not entirely harmonious, the procedure adopted by the plaintiff was unfair to the defendant. The very object of having attorneys is to aid courts in examining the law and in sifting evidence in order that justice may be administered according to law. The purpose of allowing the attorney on whom the burden lies to open and conclude is that in his opening address he shall fairly state his case — the particular evidence, and the law upon which he relies — so that the opposite attorney may have an opportunity to discuss his position. The attorney who has thus opened his case has an opportunity to reply to his adversary. The whole case is thus fairly presented to the tribunal which has to decide it. Of course no court can regulate with perfect exactness what a lawyer shall say in his opening address, but if he refuses to fairly open his case he should not be permitted to reply to his adversary; or if he is permitted to do so, then the opposite attorney should be permitted to reply to him. To countenance the method adopted in this case might lead to giving one party to a cause a very unfair advantage, and perhaps to injustice. We are not prepared to say, however, that the record in this instance sufficiently shows the arguments of plaintiff's attorney as to present reversible error, but we deem it proper to say we do not approve of the course which was pursued."

See also in this connection, though not strictly in point, Huston v. Green, 91 Fla. 434, 108 So. R. 846, and Germak v. F. E. C. Ry. Co., 95 Fla. 991, 117 So. R. 391.

I think, in the light of this former utterance by this Court, the trial court erred in permitting, over defendant's protest, the method of argument which counsel for the State adopted in this case, and that such error was prejudicial and harmful in its nature and tendency, requiring a reversal of the judgment.

TERRELL, C. J., AND STRUM, J., concur.

On Rehearing.