Newell v. State
75 So. 625
Ala. Ct. App.
1917
Check Treatment
SAMFORD, J.

This conviction is based entirely on circumstantial evidence; and while circumstantial evidence is just as potent as positive evidence, every circumstance tending to connect the defendant with the crime must' be connected with the defendant.

[1, 2] One of the strongest circumstances in this case is the evidence of the tracks,' their peculiarity and proximity to the scene of the crime; but, before the defendant can be connected with shoes that could have made those tracks, something more must be shown than that shoes that could have made the tracks were given to the sheriff by defendant’s mother. There are too many explanations to be given consistent with the defendant’s innocence. Circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence. Pickens v. State, 115 Ala. 42, 22 South. 551; 1 Mayf. Dig. 186; Ott v. State, 160 Ala. 29, 49 South. 810. In this case it was never shown that the shoes that made the tracks were ever in the possession of the defendant, or that he could have worn them. *78 So far as this record shows, they were not even found in a room occupied by the defendant. These facts were easily ascertainable; but the defendant was not called on to offer any explanation until the state, by evidence, had connected the defendant with the shoes. On account of the rulings of the trial court on the admission of evidence in conflict with the foregoing, the judgment must be reversed.

[3] It was competent to prove that the defendant had a pistol on the morning before the killing. 6 Mayf. Dig. 353, subhead 374.

[4] The several statements of the solicitor in his closing argument to which exceptions are reserved are not here passed on, for the reason that the same questions will not likely arise on another trial. Counsel should always confine their arguments to the evidence, and this should especially apply to counsel having the concluding argument in a criminal case. The state wants the guilty convicted and punished; but it is jealous of the liberties of its citizens, and only permits convictions to stand in cases where the facts warrant the verdict. The state wants no conviction by reason of the eloquence or adroitness of her prosecuting officers. But where counsel for a defendant has himself gone outside of the evidence and made allusions to facts that have not and could not be legally proven, and, indeed, to testimony excluded on his motion, he cannot complain if, in the heat of argument, the state’s counsel replies to him in kind.

For the purposes of another trial it is unnecessary to pass upon the other questions raised.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.