DuBose v. State , 148 Ala. 560 ( 1906 )

HARALSON, J.

—1. Objection to a question pro pounded to a state witness, by tbe defendant on cross-examination, viz: “If the deceased was not the father of an illegitimate child by the daughter of witness?” was properly sustained, on the ground of- irrelevancy and immateriality.

2. The witness, Jewett, was handed a shoe, he had fitted on the tracks leading to and from the scene of the homicide, stating'that the shoe and tracks corresponded, and was asked if the shoe had crude rosin on it at the time it was handed to him for the purpose of comparing it with the tracks, which was objected to for immateriality. The court allowed the question on the statement by the solicitor that he expected to show that it was material. The defendant Was shown to have been engaged in shipping turpentine, the day of the killing, and next morning, he had discarded his old shoes, and was wearing a new pair, and when asked, where liis old ones were, he showed the witness where they were, in the woods near defendant’s house. They were found by the witness, who gave Jewett one of them for the purpose of comparison with the said tracks. The evidence tended to show that these were defendant’s shoes and the one Jewett testified about, was offered in evidence. His Own son testified that the shoe offered in evidence was his father’s.

3. The witness, Walker, testified that on Friday, after the killing he saw defendant, who was stopped at witness’ store, while on his way to jail, and witness asked him, what was the trouble between him. and Jackson, the deceased, and defendant replied, that deceased had been telling tales on him and he wanted to stop him. The witness further testified, that he made no threats and offered no inducements to defendant to make the said statement. The defendant made a ifiotion to exclude the evidence,' but he made no objection to the question calling it out, the ground for the motion being, that it was irrelevant and immaterial, and did not amount to a confession. There was no error in overruling the motion.—Braham v. State, 143 Ala. 28, 38 South. 919; Stone v. State, 105 Ala. 71, 17 South. 114.

4. There was no error in the refusal to allow the defendant to ask the witness, Campbell, “If in his judgment the track was that of defendant.”—Hodge v. State, 97 Ala. 87, 12 South. 164, 38 Am. St. Rep. 145.

5. Charge 3, asked for defendant and refused, is in substance the same as charge 4 in Hunt v. State, 135 Ala. 4, 6, 33 South. 329, but the same charge is substantially covered by charge 2, given for the defendant, and the court cannot be put in error for refusing it.

6. The solicitor in his closing argument to the jury stated, “That the good citizens of the community had met on the next day after the killing, trying to find out the guilty culprit, and that the defendant was not there.” The defendant objected to this statement of the solicitor, and moved to exclude it, which motion the court overruled and defendant excepted. There was no evidence of such a meeting of citizens as is referred to in this statement, and that defendant was not present at such meeting.

Counsel, as has been repeatedly held, should never be allowed, in argument to the jury, to state or comment on facts damaging to defendant, of which there is no evidence before them, and of which no legal evidence .could be admitted. — Lane v. State, 85 Ala. 11, 4 South. 730; Coleman v. State, 87 Ala. 14, 6 South. 290; Childress v. State, 86 Ala. 86, 5 South. 775; Cross v. State, 68 Ala. 476; Florence Cotton Mill v. Field, 104 Ala. 472, 16 South. 538. For this error, the judgment is reversed and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.