No. A-4426. | Okla. Crim. App. | Oct 25, 1924
Numerous errors are assigned covering alleged mistakes in the court's instructions, the refusal to give instructions and numerous acts of misconduct on the part of the trial judge during the progress of the trial. To enter into a lengthy discussion of all these separate assignments of error would prolong this opinion to great length. The record is voluminous and the errors complained of are all supported by argument, and the citation of authority in the brief filed in behalf of this defendant. Suffice it to say that after an examination of the entire record this court is convinced that the defendant did not receive that fair and impartial trial that is guaranteed to him by the Constitution and laws of this state. This conclusion is reached not so much from the prejudice preponderating from any single assignment of error, but rather from a consideration of all these assignments collectively. The trial court throughout the trial indicated by remarks made, and rulings on the admission and rejection of evidence, a clear belief, in the presence of the jury, that the defendant was guilty, and on one occasion when the defendant offered to prove by a witness certain facts, which counsel believed to be competent, the court in ruling made the following comment:
"The court refuses to allow the witness to make the statement as indicated by counsel, for the reason it does not matter whether the defendant had or did not have a right to be there; it did not justify him in making an assault on the deceased because the deceased was not trying or in a position to cause any immediate damage to the property of the defendant, and the question as to who should use the gate was a civil question and should have been settled by the civil courts."
It appears, without dispute, from this evidence that the difficulty arose upon a sudden provocation; that the defendant *161 claimed that he was at the time in the act of defending himself from an attempted assault about then to be made upon him by the deceased with an axe. The comment of the court that the deceased was not in a position to cause any immediate damage to the property of the defendant was, under the circumstances of the evidence in this case, equivalent to saying that the defendant did not have the right or privilege to defend himself or his property against any attack or trespass by the deceased at that time. This statement of itself struck the defense a body blow. It was clearly an adverse comment upon the right of the defendant to defend himself and his property at that time, and it invaded the province of the jury to determine the merit of the defense interposed. That the defendant was at a place where he had a right to be on that occasion is undisputed. We think it clear also that there was no premeditated design or thought on the part of the defendant of taking the deceased's life. The trial court should not have made this comment. Whatever may have been the private opinion of the trial judge concerning the right of the defendant to defend himself and his property on that occasion, should have been left unsaid. Under the evidence in this case, that was the issue that the jury was called upon to decide. It was not solely a question of law, but a mixed question of law and fact, as there was a clear conflict in the evidence, and the law of self-defense entered into the controversy at the time the unfavorable comment was made.
It appears also from the record that it was the claim of the defendant that the deceased drove approximately a mile out of his way in going home from the bridge on this occasion in order to pass through this gate which he had reason to believe would be nailed up. In this connection the defendant offered to prove by certain witnesses that there *162 was a nearer road just as good that the deceased could have taken in returning home that evening from his work at the bridge had he desired to avoid any difficulty. Two plats were introduced in the evidence, one by the state and one by the defendant. There was considerable dispute as to the correctness of each of these plats, and at the close of the case the defendant requested the court to permit the jury to view the premises. This request was denied. While it is a matter of discretion with the trial court to permit a view of this kind, it appears, under this record in view of the dispute as to the location of these roads and as to whether they were open and fit for travel, that it would have clarified the situation to have permitted the jury to make a view of the premises. We do not undertake to say, however, that this was reversible error. Attention is called to it only for the purpose of indicating the court's attitude throughout the trial. The court also, over objection by defendant's counsel, permitted the state, under the guise of introducing rebuttal evidence, to rehash a large part of the testimony theretofore introduced in chief against the defendant. The evidence thus introduced was not strictly rebuttal, but covered a wide field of investigation covered by the same witnesses in chief, and had the effect of giving undue and unfair emphasis to their testimony.
During the progress of the argument by the county attorney, the record discloses he made the following assertion:
"Now we are not trying anybody for assault and battery. That is tried in the justice of the peace court."
Counsel for defendant objected to the remark, and was met by the following rebuke by the court:
"I think counsel has the right to tell the jury what the defense is. Now gentlemen, I tell you I don't want any interruption in the argument. If counsel gets out of the record, I will stop him myself." *163
Where a defendant is on trial for his life or liberty it is the duty of counsel representing him to take all steps which he thinks proper and necessary to preserve his rights throughout the progress of the trial, for the purpose of making the proper record for review by the appellate court should a conviction follow.
The duty of the trial judge is to rule fairly and impartially without unfair comment on the objections presented, and to state the law of the case in the charge to the jury. The court should never assume to exercise any prerogative of counsel, nor should counsel undertake to supplant the court's instructions by expounding his personal views as to the law of the case antagonistic to the views of the court as expressed in the general charge.
Under our system of jurisprudence the trial judge is the exclusive judge of the law. Ample opportunity is given to counsel on each side to present their respective views of the law of the case before the jury is instructed. But after the charge is given to the jury that becomes the controlling law of the case, and as such counsel on both sides as well as the jury are bound by it. Counsel may reserve exceptions to the charge as a whole, or to any paragraph or paragraphs thereof for purposes of review, but counsel has not the right nor prerogative to substitute in argument to the jury his personal views of the law in opposition to the views of the court as expressed in the instructions. In this jurisdiction the jury is the exclusive judge of the facts, but is bound by the law as given by the court.
In the instant case the court had instructed on the law of assault and battery as being included within the crime charged. There was some evidence on the part of the defendant that the blow given by defendant to deceased was not a contributing cause of death; if the jury determined *164 that it was not, the defendant under the court's instructions could have been convicted of simple assault and battery.
For the county attorney to state to the jury in argument that "we are not trying anybody for assault and battery. That is tried in the justice of the peace court," was a statement of law directly opposed to the court's charge, and was properly objected to.
Be that as it may, counsel for the defendant certainly had a right to, in a respectful and orderly manner, make his objection to such argument and preserve his record for review by this court, without any rebuke by the trial judge for having so done.
This court has held that objections to the argument must be made at the time the objectionable matter is stated, that it is too late to make such objections after the argument is closed. Buck v. Terr.,
Such holding presupposes necessarily an interruption of the argument for that purpose. It was immaterial that the trial judge did "not want any interruption in the argument." It was immaterial that the trial judge declared he would stop counsel, "if he gets out of the record." The defendant and counsel representing him had certain rights given to him by the statutes of this state and the decisions of this court construing the same, and trial judges in ruling on objections either to evidence or argument should avoid the utterance of any remark that indicates a leaning on his part one way or the other in the trial of a criminal cause.
Throughout this record the rulings and remarks of the trial judge were such as to clearly indicate to the jury his belief in the guilt of the defendant. The case was closely contested on the facts. We cannot say that the errors complained of did not work to the substantial prejudice of this *165 defendant under such circumstances. We opine that to a considerable extent they contributed to his conviction. The judgment is reversed, and cause remanded to the trial court for new trial.
BESSEY and DOYLE, JJ., concur.