State v. Kingsley , 137 Or. 305 ( 1931 )

I concur in all of the foregoing except the process of reasoning employed by my associates in reaching their conclusion that no reversible error was committed when the court permitted the district attorney to advance the challenged argument. I agree with the result reached by the majority, but do so by a different process of reasoning which does not subscribe to the doctrine that when the attorney for the defendant departs from the record the district attorney must stay within it; rather, I am of the opinion that the act of the defendant's attorney in going outside of the record, over the objection of the district attorney, is an invitation for the other to do likewise. A brief reference to the incidents which occurred during the argument is deemed necessary. While the court was endeavoring to define the bounds within which the argument must be confined, defendant's counsel, in the presence of the jury, addressed the court, thus: "If Your Honor please, I view this in this light: the legislature has seen fit to give to the jury and place in their hands the power of life and death. Now, we have come into court here and we have put ourselves upon the mercy of this jury just the same as if we had entered a plea of guilty to Your Honor, and we feel that having thrown ourselves upon the mercy of the jury here, we should have the full right to make the same plea we would make to Your Honor." To which the presiding judge replied: "As I indicated before, I don't want to use the term `plea for mercy' until you use it." Defendant's counsel replied: "That is the plea I am going to make."

The certificate of the trial judge, attached to the Bill of Exceptions, states that defendant's counsel employed the following subject-matter in his argument to the jury:

"Defendant's counsel thereupon proceeded to make a plea to the jury for mercy based upon various considerations appearing in the evidence in the case, and defendant's counsel in the course of his plea referred to various cases where persons actually guilty of murder in the first degree had received life sentences and argued inferentially that the jury was entitled to take such matters into consideration, and that the defendant in this case should not receive more drastic punishment than others in other cases where the defendant was equally or more guilty, and also arraigned the social system and society for permitting conditions to exist whereby persons of tender years were allowed to live under conditions which have a tendency to force them into a life of crime, and argued that imprisonment for life would be an adequate and provident punishment in this particular case, and that the jury should exercise its prerogative of recommending life imprisonment."

The record indicates that the district attorney objected to the above argument and that he did not indulge in the remarks challenged by the defendant until after the above words had been spoken, and the court had ruled that our statute, which vests a discretionary power in the jury to recommend life imprisonment, even when first degree murder is proved, rendered proper the defendant's plea for mercy.

To hold that when the attorney for the defendant departs from the record the district attorney may make no reply is to confront him with a serious handicap. The authorities regard the act of defendant's attorney as an invitation to the district attorney to reply: Thompson on Trials (2d Ed.) § 987; Pierson v. State,21 Tex App. 15 (17 S.W. 468); Barczynski v. The State, 91 Wis. 415 (64 N.W. 1026); and note in 46 L.R.A. 641 at 670.

Moreover, the defendant never obtained a ruling from the circuit court upon the propriety of the challenged argument. His counsel excepted, it is true; but merely excepting was not sufficient to obtain a review by this court for it is well established that it is the duty of opposing counsel, in order to preserve alleged misconduct in argument for the attention of this court, to obtain a ruling from the circuit court, and then, if the ruling is unsatisfactory, secure the exception. The ruling is as essential as the exception: Watts v. Spokane P. S. Ry.Co., 88 Or. 192 (171 P. 901); Boyd v. Portland Elec. Co.,37 Or. 567 (62 P. 378, 52 L.R.A. 509); 2 R.C.L., Arguments of Counsel, p. 438, § 36.

But if the exception be deemed adequate, and if the argument should be regarded as improper, yet it seems to me that the challenged comment concerned facts generally known by all people, including the jurors, and therefore nonprejudicial. Everyone knows that men escape from our penitentiary from time to time, and that prisoners committed for life rarely serve their full sentences. Four times in the interval from November, 1914, to the present time the people of this state have voted upon the subject of capital punishment. In those four elections the same facts that were seized upon by the district attorney in his challenged argument were generally employed by the voters of the state in determining the merits of the bills pending before them. For instance, a group of voters, May 21, 1920, who favored capital punishment, inserted in the voters' pamphlet, published by the Secretary of State, pursuant to law, and mailed to all voters, the following argument in opposition to the effectiveness of life imprisonment: "He is sure of humane treatment, of provision for his physical needs and has before him always the possibility of pardon, as well as of escape, * * *" The initiative bill of 1912 prohibiting capital punishment expressly limited the governor's power to pardon or parole those found guilty of homicide, and thereby brought forth as a subject of general comment the pardoning power.

The item mentioned by the district attorney that six and one-half years constituted the average term served by life prisoners was not the vital fact. The persuasive point was that which the jurors already knew: that a life prisoner was subject to pardon and parole.

The Alabama court recently had occasion to consider almost the identical problem which now confronts us: One Anderson, accused of robbery, plead insanity. The district attorney in addressing the jury spoke thus: "If you send the defendant to Tuscaloosa, in two or three years he will be out." Upon the objection of the defendant's counsel, the trial judge said: "Of course, gentlemen of the jury, argument of counsel in regard to what will be done with a man if he is committed to Tuscaloosa should have no weight with you or bearing on your verdict, because it is to be presumed the authorities there would act in accordance with what the law requires in regard to insane persons, and, of course, the argument in that record should not be considered by you, because it is improper." The defendant having been convicted, the argument of the district attorney was assigned to error. In holding otherwise, the Supreme Court of Alabama in Anderson v.State, 209 Ala. 36 (95 So. 171), held:

"We are of opinion that the argument and statements of state's counsel in the presence of the jury, making reference to escape from the asylum or to defendant's having committed other crimes distinct from that for which he was on trial, were not prejudicial, or, if so, not such as was not eradicated by prompt and explicit action of the court, admonition to counsel, and instructions given the jury."

It will be observed that in the Alabama case the trial court's remarks, instead of nullifying the effect of the attorney's comment, strengthened it.

For the above reasons I concur in the result reached by the majority.