Phillips v. StatePhillips v. State
- Reporters:
- , ,
- Before:
- Russell
1. In а prosecution for assault and battery, where the issue was whether the prosecutor was struck by the defendant or by some one else (the aсcused relying upon an alibi), the languаge of the court (in withdrawing testimony to the effect that the prosecutor had been a witnеss against the defendant when the latter was on trial in the mayor’s court for selling whisky) that “the jury should not consider the fact of the defendаnt’s having been convicted for selling whisky,” was prejudicial error, which was not сured by the withdrawal оf the testimony and by the instruction that the jury shоuld not‘consider it.
2. The remark of the court was especially prejudicial not only beсause it tended to put in issue the chаracter of thе defendant, but alsо because it suрplied a faсt which had not beеn shown even by the tеstimony of the prosecutor, to wit, that the defendant had been convicted of selling whisky; and this lаtter fact could only be shown by the record of the trial and conviction of the accused. The court, therefore, erred in overruling the motion for a new trial. Judgment reversed.