*1 COURT OF APPEALS [Vol. [Strother
State, Tucker v. 91 Am. Dec. 587.
Strother v. State. Violating Law. Prohibition Rehearing August 1, 30, 1916. denied 1916. Charge Court; that unless 1. Doubt. —A Reasonable member of the doubt convinced reasonable guilt, they acquit, of one on the dissent of defendant’s juror, refused. was therefore Same; Directing general charge 2. can never be Verdict.—The where there is a matter. conflict the evidence as material charge asserting 3. Undue Prominence. —A the the of defendant the can look to the where selling liquor charged, offense in connection with all the other isolates and testimony. Same; Entrapment. that if the believe that the state’s —A witness acquit, solicitation of witness for the sion of the crime. defendant into a violation of the improper, yielded since the mere fact that defendant state, was not a for the commis- Same; Credibility that if the Witness. —A believed that state, equal credibility, the witnesses for the that those for defendant and for corroborated, are look-to that fact in doubt, whether defendant all reasonable in- vaded the to determine the of- the evidence. Trial; Argument of Counsel.—Where defendant was accused of vio- lating in not itor was entirely prohibition permitting the court erred -the state’s counsel man, to state that the have heard that a who he did accused, store, drove behind a and while the solic- buggy, since such statement was the evidence in the case. without Shelby County Court. Lyman. Heard before E. Hon. S. Max Strother was convicted prohibition law appeals. he Reversed and remanded. v. The State.] Attorney- appellant. L.W. Martin, Henderson, Samuel General, General, *2 and Harwell G. Assistant Davis, for the State. prohi- EVANS, the Appellant of was convicted J . presents statutes, prosecutes appeal. The record and this
bition requests for written for unnumbered several re- by court. We by the were refused asked which they out in the record: them are set view seriatim as jury is convinced of the (1) member First. “Unless guilt, of defendant’s a reasonable doubt the evidence acquit.” that a verdict they to would be trite observe must unanimity; involved in this yet precisely what is that is upon charge, predicates the reasonable doubt it for Had juror; mistrial. could but work a of one at most his dissent convict,” “they charge employed phrase cannot instead the the phrase “they acquit,” it have announced then would State, legal proper. principle. a correct Its refusal was —Crain 165 51 South. Ala. Smith Ala. Phillips State, 162 50 requests general the affirmative (2) Defendant Second. conflicting. proper. charge. The evidence is refusal Its request “In (3) third was as follows: Third. Defendant’s defendant in connection the or innocence of publicity the can to the of all the other look with charged.” the where the offense is the the the of of course look to place, as it and and all circumstances of the evi dence, open to the criticism that and this is isolates prominence particular phase or undue circumstance testimony weighed making verdict, is to be their the argumentative. open further that is It mat criticism instructed that such not that the is circumstance ters prominence to is to be considered connection with all the other not cure the vice.—Durrett This does evidence. 434; Willingham v. Ala. “If
(4) believe evidence that Fourth. the state defendant into violat for witness acquit.” ing properly re This principle not assert a correct of law. The mere It does fused. temptation yielded to the solicitation fact that COURT OF APPEALS [Vol, is no of a state for the commission a witness self-evident, authority. and needs no citation of crime. (5) Fifth. “If the believe from evidence that witnesses for state witnesses for the defendant are equal credibility and the witnesses for defendant are corrobo rated, that look to or whether not defendant all reasonable doubt.” judges testimony, are the sole regard witnesses, without invading to the number of the and a jury by stressing or condition of the evidence in weighing refused, argu the same is and because it is mentative. (6) exceptions The bill appellant’s shows counsel
objected
following
argu
to the-
statement of the
his
*3
jury:
ment
“You
have heard that a man —I do not
up
that it
was Max Strother —drove
in his
behind Max
right
Columbiana, and,
Lefkovits’ store
here in
while the solici
watching him,
buggy.”
tor was
sold
from his
A motion was.made to
jury,
exclude the statement
overruled,
excepted.
which motion was
and the defendant
entirely
circumstance was a matter
dehors the evidence in this
case,
any
support
testimony brought
and found no
in
out.
tendency
argument
The
prejudice
of this
was to
the minds of
jury against defendant,
unjustified
was
improper.
should,
motion,
have been excluded.—
Sykes
398;
151 Ala.
Cross
68 Ala.
484;
Childress
Tannehill v.
State, 159 Ala.
Fricke,
Wilhite v.
76,
For the error of the court below reversed and the must be cause remanded.
ON REHEARING. It is application insisted on an General rehearing argument a quoted that the extract from the solicitor’s opinion unobjectionable in the was and not made as the statement statement, a fact. As the writer understands solicitor’s a frank paraphrase and fair rendition would it about as follows:
[Mitchell you not, man —I don’t a “I don’t know whether heard but bug- up in his say was this Strother] [Max —drove Columbiana, right gy in here behind Max Lefkovits’ store buggy.” whiskey while the was solicitor liquor,” buggy,” Store,” “sold in a “Max Lefkovits’ “drove watching,” “right Columbiana,” the solicitor was here “while circumstances employed in are all a details statement represented to time, place, be manner of what officer of the face of an infraction of flaunted brazen entirely dehors This statement law. tendency finding support in thereof. used no true, a verdict arguendo, rather to influence effect was point through or drive home an prejudice than to illustrate always great be accorded coun- argument. While latitude should controversy, truth of the in the interest of the sel’s transgress counsel, debate, infrequently in the heat of do not proprieties argument. opinion legitimate We question that of substantive use of the statement opinion have been ex- and on the authorities cited cluded on motion. . Application denied. The State.
Mitchell v.
Violating Prohibition Law. 1916. 72 South. *4 Review; Error; transcript Record. —Where contains quash proceed- rulings exceptions, accused to motion of no bill of proper ings, set out in the record can- and the refusal of the written not be reviewed. transcript excep- the intelligently contains no bill of New Trial. —Where tions, appellate review the action court cannot trial trial, required by grant refusing as defendant motion new court 1915, p. 722. Acts statutory duty appellate is the court criminal cases 3. Same. —It although prejudicial, excep- error there is no the record for bill tions. Evidence; judicial appellate cogni- Notice. —The court takes Judicial Ensley Ensley, at is the the name of the court Inferior Court of zance as jurisdiction, p. judge Acts established presides who therein.