State v. Wana

FERRISS, J. — Defendant was convicted of an assault, without malice, and his punishment fixed at four months in jail. The testimony showed a street fight, during which the defendant cut the prosecuting witness with a knife. He claimed self-defense. The question was as to which one began the fight. The prosecuting witness swore that defendant made the first assault by cutting through. Ms coat, in the back, three times. The de-, fendant’s evidence tended to prove that he was first assaulted and knocked down, and that he then, in self-defense, cut the prosecuting witness in the forehead. Several errors are claimed in the motion for a new trial, but in this court defendant insists only upon the assignment of error in connection with the following episode, which occurred during the final arguments. As taken in full from the record, here is what transpired during the closing argument by Mr. Bow-cock, attorney for defendant: ' ' [561] “By Mr. Bowcock: We had the knife here in court. Where is that coat? Don’t you know that if that man had been cut in the back, the State would have the coat here' to show the holes? It had the power. It cannot get back of the subterfuge — like the talk about this mysterious boy. [At this point, counsel for the State placed upon the counsel table a package wrapped in paper, saying, ‘Here it is.’] You can show nothing now, sir; you have closed your case; it is not before the jury, and you have no evidence on that. Where is the boy? Where is the boy, with the process of this court?” Afterwards, during the closing argument of connsel for the State, there occurred the following: “Mr. Smith: Now, gentlemen, he asked you, ‘Where is the coat?’ I am willing to produce it. -If we produce the coat to you. to see, they would say that was a frame-up, no doubt. “Mr. Bowcock: Now, your Honor, I didn’t interfere with the gentleman. He knows as well as I that after the State’s case is closed, and the entire case is closed, he cannot bring anything up, and say, ‘I will offer it now.’ “The Court: He said that, and you refused it. “Mr. Bowcock: I said he knows it is the law. “The Court: If you wanted to see that coat— “Mr. Bowcock: I wanted it during the evidence; not after the case was closed. “Mr. Smith: You don’t want it now? “Mr. Bowcock: No, sir. “The Court: That ends it. “Mr. Bowcock: Because it is not according to law. “Mr. Smith: That is all right, gentlemen. He does not want the coat now. As I said before, if we offered it, then we would run the risk of incurring his charge that it was a frame-up: [562] “Mr. Bowcock: We save an exception.” The comment of Mr. Bowcock on the failure of the State to produce the coat was legitimate argument. The subsequent acts and remarks of the prosecutor were highly improper, and should have been severely rebuked by the court. Still, we cannot perceive reversible error. We must, in the interest of orderly procedure, adhere firmly to the rule that proper objections must be made to the court and exceptions saved to the court’s ruling in order to entitle a party to a hearing here on alleged errors. When the prosecutor produced the bundle which he said* was the coat, defendant’s counsel asked no action or ruling by the court. He said nothing to the court, but contended himself with dealing directly with the prosecutor in a manner which he apparently regarded as satisfactory. There was no objection addressed to the court. Counsel simply refused the offer made by the prosecutor, and advised him that, inasmuch as the case was closed, the Coat was not before the jury. When Mr. Smith, the prosecutor, in the course of his argument, made the remark complained of, Mr. Bowcock did not ask any ruling from the court, and no ruling was made. The colloquy that ensued does not amount to a ruling on any request or objection. After this, Mr. Smith made a further remark to the jury, and the incident was closed by Mr. Bowcock saying, “We save an exception.” An exception to what? Apparently to the remark of counsel. There seems to be a misapprehension-on the part of counsel, in many cases that come here, as to the proper method of saving for review alleged errors arising from improper remarks of counsel in argument to the jury. In order to save the point for review, there must be an objection addressed to the court, a ruling by the court, and an exception saved to such ruling. To except to the remark of counsel is not enough. Exceptions go to the rulings of the court. If objection is made to a re [563] mark of opposite counsel in his argument to the jury, and the court overrules the objection, an exception to the ruling of the court must be saved. If the objection is sustained, and the situation calls for a rebuke from the court to counsel who makes the objectionable remark, such rebuke should be requested, and, if refused or deemed insufficient, an exception should be saved to the failure of the court to comply with the request. The same course should be taken with regard to any ruling or order requested. In this case, no ruling or order by the court was requested; none was made by the court, and there was no exception to the action or nonaction of the court. Apparently, counsel was satisfied with the attitude and remarks of the court. The only exception was directly to the remark of counsel; but this, as we have shown, cannot avail. In the motion for new trial it is stated that the court was requested to reprimand counsel, and to instruct the jury not to consider the offer to produce the coat. It is also stated that the court, of its own motion, told the jury that counsel for the State had a right to call attention to the fact that the coat was there. We find nothing in the record to bear out these statements. All that appears in the record on this point appears in the excerpt set out above. The verdict of the jury, finding assault without malice, indicates that they were not influenced by the matters complained of, and consequently the rights of defendant were not prejudiced. Finding no reversible error, the judgment is affirmed. Brown, P. J., and Kennish, J., concur.