McClung v. StateMcClung v. State
This аppellant was convicted in the lower court for the offensе of manslaughter in the second degree. The record discloses that the deceased was one Willie J. Williams and that his death resulted from his hаving been struck by an automobile on a highway known as the “Rainbow Drive”; and that the accident happened on a rainy night near the city of Gаdsden. The evidence in the case was in sharp conflict on many points of fact pertinent to the issues involved upon the trial. These quеstions, of course, were for the jury to determine. It appears from the record that the trial, from the judgment of which this appeal was taken, was the second time the case had been tried; the former trial resulting in a failu.re by the jury to reach a verdict, resulting in a mistrial of the cаse.
During the trial of this case many exceptions were reserved to the court’s rulings, all of which are insisted upon as error. After a careful study of these questions, we are of the opinion that the court’s rulings, in the main, were free from error and we do not deem it necessary to write at length in order to sustain the court in this connection. We are of the opinion that the testimony of state witness Brown was improperly admitted over the objection and exception of defendant. The facts testified to by this witness were no part of the res gestse; it had referеnce to a hotly contested question of fact and was highly injurious. In this cоnnection we pretermit a discussion as to the manifest inconsistencies and discrepancies of this witness’ *132 testimony, such being questions for the jury аfter the testimony had been allowed.
Pretermitting a discussion of the question of the relevancy of the testimony (as not of the res gestae) as to the location and condition of the defendant’s automobilе some time after the alleged commission of the offense cоmplained of, yet in this connection it was not permissible to allow thе solicitor to state to the court in the presence and heаring of the jury — as a matter of fact — -“and it being the same car, the very one your honor, the very car that hit the deceased, show where it wеnt to.” Counsel may be permitted, of course, to present the respective contentions and insistences to the court on the trial оf a case in order that the court may understand the matters in contrоversy, but this statement of the solicitor is not thus presented. As it appears, it was clearly a statement of an emphatic fact by the solicitor as if he was a witness; and not having been sworn as a witness, the statemеnt thus made should not have been permitted. In Prentice v. State,
24
Ala. App. 587,
It does not appear that objections were interposed' and exceptions reserved to the attempted impeachment of defendant’s witness Mrs. L. S. Powell, on irrelevant and immaterial matters, by the state witness Mrs. Pansy Williams. Hence the appellant cannot be given the benefit of this question under the rule that the trial сourt will not be put to error upon questions where no ruling has been invokеd or had upon the trial in the court below. This for the reason review is limitеd in the appellate court to those matters upon which action or ruling at nisi prius were invoked or had. Woodson v. State,
Other questions are presented, but need not be discussed.
For the errors indicated the judgment of conviction from which this appeal was taken is reversed, and the cause remanded.
Reversed and remanded.