116 So. 418 | Ala. | 1928
It is a settled rule that this court, upon certiorari, will review the Court of Appeals only on questions of law, and not upon the finding of fact or application of the law to the facts, or the application of the doctrine of error without injury, unless the facts are fully stated in the opinion of the Court of Appeals so that a review may be effected without an examination of the record filed in the Court of Appeals. Postal Tel. Co. v. Minderhout,
This leaves but a single question open for review in this case; i. e., the court, over the objection of the defendant, allowed the solicitor in his opening argument to read section 7705 of the Code to the court, and to state to the jury "that he had been denied, by the ruling of the court, of the privilege of proving by expert testimony the handwriting of the defendant," as we take it, on the check alleged to have been forged.
The practice of permitting counsel to read the law to the court in the presence of the jury, and of reading statutes or excerpts from the opinions of this court declaring the law, when applicable to the case in hand, is a practice that has often been approved as an exercise of the constitutional right of a party to be heard. L. N. R. Co. v. Cross,
At the same time, it has often been declared that it is not permissible for counsel in argument to state facts not in evidence, and when this rule has been infringed upon, with injurious consequences, reversible error is the result. The decisions have been recently reviewed and clarified in the case of American Ry. Exp. Co. v. Reid,
The statement of the solicitor complained of in this case was clearly improper, but it was the statement of an occurrence that took place during the trial in the presence of the jury, and was met by the statement of the presiding judge:
"I did not deny you the right to prove the genuineness of the writing by experts; I said that you had that right in your main case, and that the jury has the right to compare them, and I am going to so charge them."
Under these circumstances we are of opinion that the statement of the solicitor was without injury and could not have in any way influenced the verdict.
Writ denied; application for rehearing overruled.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.