180 So. 119 | Ala. Ct. App. | 1938
The indictment charged the defendant with the commission of a felony. In the first count it was charged that he feloniously took and carried away one ton of cotton seed, of the value of $50, the personal property of K. T. McLemore. The second count charged that he did buy, receive, conceal, or aid in concealing, one ton of cotton seed, of the value of $50, the personal property of K. T. McLemore, knowing it was stolen and not having the intent to restore it to the owner, etc.
The trial in the lower court resulted in the conviction of the defendant under a general verdict of "guilty as charged in the indictment"; returned by the jury.
On the trial, the State's case rested principally upon the testimony of admitted accomplices; it therefore became necessary that other evidence tending to connect the defendant with the commission of the offense should be adduced in corroboration of that given by the accomplices. Under the statute, if such corroboratory evidence merely tended to show the commission of the offense or the circumstances thereof, it would not be sufficient to meet the rule as to the burden resting upon the prosecution in this connection. Code 1923, § 5635. The trial court so charged the jury.
Upon the theory that there was no evidence, other than that of the accomplices, tending to connect the defendant with the commission of the offense, the defendant requested charge 1, which was the general affirmative charge. The court refused this charge, and as a result the appellant insists that reversible error was committed. We do not so conclude. We are of the opinion there was some evidence adduced upon the trial which came within the stated rule. The question as to whether there was evidence on the given point was one of law for the court to determine. Its weight, probative force, and sufficiency rested with the jury. For this reason we may not put the court in error in refusing said charge.
Charge 8 was properly refused as not being predicated upon the consideration of all the evidence.
Charge 10, refused to defendant, was predicated upon the consideration of the evidence, and should have been given. The charge has had the approval of the appellate courts of this State for many years. Arrington v. State,
Charge 13 was properly refused because of the use of the word "supposition." Smith v. State,
It was not permissible, under the elementary rules of evidence, for the State to undertake to prove by its witness, Golly Green, what Rogers Hampton knew about the cotton seed of K. T. McLemore. The court should have sustained the objection to the unauthorized question propounded by the solicitor to said witness, to wit: "He (referring to Rogers Hampton) knew then Mr. McLemore had some cotton seed?" Nor was the answer of the witness, "Yes sir," permissible. A witness may not be allowed to testify as to what some one else may know. Bailey v. State,
Of like import is the case of Delaney v. State,
See, also, the case of Louisville Nashville Railroad Company v. Perkins,
The next insistence of error relates to the following, as shown by the record: The solicitor asked the defendant's witness, Brown, this question: "I ask you this, you did not perchance know at the time that Mitchell (defendant) was indicted for receiving oats too?" This line of inquiry was foreign to the issues involved upon the trial of this case. That it was highly prejudicial cannot be questioned. The court erred in overruling the timely objection to this question, and the exception reserved to this ruling must be sustained.
Mack Jordan, a witness for the defendant, was sworn and placed under the *123 rule with the other witnesses in the case. After being with the other witnesses for some time, he violated the rule, without the knowledge, consent, or connivance of the defendant; came into the courtroom and there remained hearing the evidence in the case for some one or two hours before he was called by the defendant as a witness. When he was called as a witness by the defendant, the solicitor objected to him testifying because he had violated the rule. The court announced that if he had violated the rule he would not permit him to testify. Upon an examination of the witness by the court, and the ascertainment of the fact from the witness that the witness had violated the rule, the court refused to permit him to testify, and to this action of the court the defendant then and there duly excepted. In this there was error.
In the case of Degg v. State,
As stated above, the witness Mack Jordan was not permitted to testify, and the defendant was thus deprived of the benefit of his testimony; but, notwithstanding this, the solicitor in his closing argument to the jury stated: "Old Mack Jordan was stashed out there." To this statement the defendant objected. Whereupon the solicitor stated: "Well, I will withdraw the word 'stashed.' It would have been some more made up testimony." The defendant objected to this statement in argument and moved to exclude same, but the court overruled the objection and defendant excepted. The above ruling of the court was error. However unintentional upon the part of the solicitor to unduly prejudice the defendant, the remarks complained of could have had no other effect. They were not within the scope of legitimate argument, and the defendant's case should not have been thus burdened.
The remaining question presented refers also to alleged improper argument of the solicitor wherein he turned to the defendant and stated: "You been slick too long, and your money made a fool out of you. You thought you could take your money and beat the case." In the first place there was no evidence in the case upon which to predicate the remarks complained of, and, being outside the record, the court should have sustained defendant's objection and granted his motion to exclude. Furthermore, we know of no provision of law, or rule of practice, providing that an attorney or solicitor may address his remarks direct to the defendant personally instead of confining his argument to addressing the jury. It cannot be doubted that the incident here complained of was prejudicial to the substantial rights of the accused and tended to place him in undue opprobrium before the jury.
No other questions are presented.
Reversed and remanded.