Waller v. State , 242 Ala. 1 ( 1941 )

The Court of Appeals, in the opinion reversing the case for the alleged error of the Circuit Court in overruling the defendant's objection to the statement of the Solicitor in continuing his closing argument to the jury "That is a remarkable thing, gentlemen," states:

"Appellant was convicted of the offense of robbery. Code 1928, Sec. 5460, Code 1940, Tit. 14, § 415.

"His indictment, arraignment, trial, and conviction, were all in the regular forms provided by law.

"No necessity here appears for any lengthy discussion of the details of, or evidence in, the case.

"The testimony on behalf of the State was ample — no error intervening — to support the verdict of guilt returned by the jury.

"But there was error committed on the trial, for which the judgment of conviction must be reversed.

"The State, as a part of its case, sought to show — in fact introduced testimony tending to show — flight on the part of the appellant after the commission (alleged) of the offense charged.

"Appellant, to refute this, testified that he spent the night of the alleged crime (it being claimed by the State to have occurred early in said night) with his father, in the neighborhood of the occurrence. The father did not testify on the trial.

"In this state of the evidence the bill of exceptions recites as follows: 'In his closing argument to the jury the Solicitor made the following statement: "It is a significant thing that his (defendant's) father was sitting there and he did not put him on the stand." Defendant objected to the argument and the court sustained the objection. The Solicitor continued in his argument: "That is a remarkable thing, gentlemen." Defendant objected to that statement, the court overruled the objection and the defendant duly and legally excepted.' " (Italics supplied.)

The two statements are not of the same import, the ruling of the court was different as to each, and it does not affirmatively appear that they referred to the same incident. Therefore applying the universal rule that the recitals in the bill of exceptions will be construed most strongly against the exceptor, 9 Alabama Digest, Exceptions, Bill of, 519, 26, the last statement, the basis of the error for reversal, was not a statement of fact, but an observation as to the evidence in the case. Moreover, assuming that the last remark referred to the failure of the defendant to put his father on the stand, the Solicitor was clearly within his rights in commenting on the fact. One so closely related to the defendant by blood is bound to be hostile to the State and can not be said to be as available to the State as to the defendant. Jackson v. State, 56 Tex.Cr. 28, 117 S.W. 990; 14 Am.Jur. 875, § 151; Com. v. Spencer, 212 Mass. 438,99 N.E. 266, Ann.Cas. 1913D, 559; 16 C.J. 904, § 2250.

The ruling of the court was therefore not erroneous.

The writ of certiorari is granted; the judgment of the Court of Appeals is reversed and the cause is remanded to that court.

All Justices concur.

On Rehearing.