Emma Handley, alias Emma Johnson, was indicted for the murder of her husband, James Johnson, and convicted of murder in the second degree. The case was here on former appeal. Handley v. State, 212 Ala. 347, 102 So. 628. An outline of the evidence is there given.
In the opening statement of the solicitor, referring to the dying declarations of deceased proposed to be offered in evidence, he said: "In that dying statement he said that this woman took part in the killing." Continuing, the solicitor further said: "He (this dead man) told Emma that she killed him or was responsible for his being killed." With assurances to the court that he expected the evidence to show what he had stated, the court overruled objections of defendant, and exceptions were reserved.
The office of an opening statement in advance of taking testimony is to acquaint the jury, under the guidance of the court, with the nature of the issues presented. This may include an outline of the evidence proposed to be offered. 1 Thompson on Trials, § 261.
"No Right to Rehearse Facts Which Cannot be Proved. — Counsel has no right, in his opening statement, to rehearse before the jury facts which he is not in a condition to prove. It is the duty of the judge to see that this rule is not overstepped, and therefore he has a right to ask the counsel if he means to prove what he has stated. As was well said by Mr. Justice Graves: 'The decisions unite in substantially denying the right to get before the jury a detail of the testimony expected to be offered, and especially any not positively entitled to be introduced, and deny the right to use it as a cover for any topics not fairly pertinent.' " 1 Thompson on Trials, § 263.
We approve the above as a sound rule for the guidance of prosecuting officers in state cases. A dying statement of the deceased was reduced to writing and offered in evidence on the former trial. Certain statements were then declared subject to objection as mere conclusions of the witness. 212 Ala. 347,102 So. 629.
It is insisted that the statements of the solicitor had the effect of bringing before the jury matters already condemned by the decision of this court. On the second trial, the objectionable statements were eliminated. Thus corrected, the statement tended "to prove concert of action between defendant and Hillman, leading immediately and without break up to the fact of the killing." But these conclusions were inferential from circumstances stated. The evidence does not disclose the categorical statement by the deceased that defendant "took part in the killing," or that he told "Emma that she killed him," etc. The statements of the solicitor were too broad.
Does this require a reversal of the case? As often said, we are called upon to review the errors of the trial court, and not the errors of others. The party must present the matters complained of to the trial court in such manner as will put the court in error in failing to sustain his objections. In dealing with an opening statement of facts to be proven, the court may consider whether the proposed proof is illegal, and may question counsel as to whether such proof will be forthcoming.
The proposed evidence here was not per se illegal. Kindred statements were held illegal on the former hearing, because the context showed they were mere conclusions of the witness and not of known facts. In such case we think it the proper rule to point out wherein the proposed statement is illegal, or to call the matter to the attention of the court after the evidence is in, and have the objectionable statements then excluded or withdrawn. If it appears the injury cannot be properly eradicated, the matter should be presented in the motion for new trial. Failure to prove a particular thing, proposed in good faith, will not ordinarily work a reversal. People v. Gleason, 127 Cal. 323, 57 P. 592.
Special counsel may appear in the prosecution as an assistant to the solicitor and with the consent of the court. The management of the case remains with the official representative of the state, in whose name the special counsel appears. The consent of the state is all the authority needed by special counsel; hence a motion by dependant to require special counsel to show his authority is properly overruled. Shelton v. State, 1 Stew. P. 209; Johnson v. State, 13 Ala. App. 140,69 So. 396; Jones v. State, 16 Ala. App. 154, 75 So. 830.
"In the absence of statute, the state cannot be compelled to disclose the names of private prosecutors or informers, especially where it is not shown that defendant will be prejudiced by the want of such information." 16 C. J. 801; State v. Fortin, 106 Me. 382, 76 A. 890, 21 Ann. Cas. 454; Barkman v. State (Tex.Cr.App.) 52 S.W. 69.
The rule is founded upon the public policy that encourages the citizen to give aid in the detection and punishment of crime. He need not assume the role of a prosecutor, but, with the consent of the state authorities, render assistance in the name of the state. Moreover, bringing to the attention of *Page 175 the jury the names of those employing or paying special counsel may work an injustice to the state or to the defendant, as the case may be. Thus, if a popular subscription is raised to prosecute a man accused of crime, the publishing of the names of contributors might easily throw into the case a personal and popular influence highly injurious to the defendant. In the absence of some reason to the contrary, it is better that prosecutions proceed purely in the name of the state.
We can easily conceive of abuses arising from unknown or secret interests employing counsel to prosecute in the name of the state. The official representative of the state has the first duty to see that no abuses arise, and a failure of duty in this regard will not be presumed unless made to affirmatively appear.
In this case it is suggested that insurance companies had some interest in the trial, and defendant was entitled to know if they retained the special counsel. The case had been once tried, and the defendant was then fully advised of the state's insistence that certain insurance policies upon the life of deceased payable to his wife, the defendant, furnished a probable motive for the murder, the defendant using Isaac Hillman as a ready tool for that purpose. It further fully appeared the prosecution and arrest of defendant followed immediately upon the commission of the crime, as the result of the disclosures of deceased by dying declarations, and through Hillman, the confessed accomplice, to the public officers. The alleged relation of the insurance policies to the homicide, and the consequent interest of the insurance companies, were fully known and in no sense a secret to defendant.
The protection of property rights involved in the commission of crime is a proper incentive to lending assistance to the state in detecting and punishing crime.
Assuming that a disclosure of the parties retaining Mr. Beddow as special counsel would have named the insurance companies, such fact would not, or should not, have influenced the jury in any way, and would have disclosed nothing material to the defense which was not already known.
The appearance of special counsel after the jury was organized and the trial entered upon did not, as matter of right, entitle the defendant to have the case withdrawn and continued. If there was any personal relation between Mr. Beddow and any juror which put defendant at disadvantage in the matter of challenges, it is not made to appear; hence it is not shown there was abuse of discretion in denying the motion for continuance.
Charge 3, refused to defendant, was argumentative and singled out a portion of the evidence. The oral charge fully instructed the jury touching the presumption of innocence, and that no conviction should be had unless convinced of guilt from the evidence beyond a reasonable doubt.
Refused charge No. 6 is rather long and involved. The principle therein involved, namely, the corroborative evidence required in aid of the testimony of an accomplice, was fully and accurately embodied in given charges 5 and 7. Code 1923, § 5635; Lumpkin v. State, 68 Ala. 56; Malachi v. State, 89 Ala. 134,8 So. 104.
Refused charges 9 and 10 seek to instruct the jury that "the testimony of an accomplice should be weighed with great caution," etc. Refusal of similar charges has been held error in Mississippi. Wilson v. State, 71 Miss. 880, 16 So. 304. It appears in that state a conviction may be had on the uncorroborated testimony of an accomplice. Where such rule prevails, there is stronger reason for giving such instructions than in states where, as in Alabama, the statute has provided the precaution — corroborative evidence tending to connect the accused with the crime.
Having given this statute in charge, and further instructed the jury (given charge C) that, if they believe the witness "Isaac Hillman has sworn willfully falsely as to any material fact or matter in the case, you are authorized in your discretion to disregard the entire testimony of such witness," and further given in oral charge full instructions as to weighing the testimony of witnesses, including the consideration of their interest in the case, it was not error to refuse instructions 9 and 10.
The defendant having been convicted of murder in the second degree, and thus acquitted of murder in the first degree, a refusal to instruct that murder is presumed to be of the second rather than of the first degree was harmless.
There was no error in allowing the testimony of the witness Tillman, a proper predicate having been laid, as to statements made to him by defendant, nor to use an unsigned statement taken down at the time as a memorandum, upon proof that it was correctly taken down.
There was sufficient corroborative evidence tending to connect defendant with the crime to meet the requirement of the law. This, taken in connection with the direct testimony of the accomplice, supported the charge that defendant instigated and hired Hillman to commit the murder. The weight of this evidence was for the jury. If true, defendant is guilty of murder.
The declaration in argument by state's counsel: "She is a murderer; she is a murderer. She is not some one who has committed some of the lower offenses of homicide" — did not transcend the bounds of legitimate argument. 1 Thompson on Trials, § 980. *Page 176
Several statements in argument presented here were not objected to at the time, and need not be further considered.
We have carefully considered other rulings upon evidence, objections to argument and refused charges, and find no ground of reversal in them. They will not be discussed in detail.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.