Cobb v. State

The defendant was convicted of violating the prohibition laws, and he appeals.

It was within the sound discretion of the trial court to excuse the witness Campbell from the rule without requiring him to be examined first as a state's witness. Moulton v. State, 19 Ala. App. 446,98 So. 709; Shumate v. State, 19 Ala. App. 340,97 So. 772. And the record does not, in our opinion, show an abuse of that discretion.

It was entirely immaterial as to whether or not the officers had a search warrant. Consequently there was no error in sustaining the state's objection to the question to the witness Cornett calling for information as to same. Banks v. State,18 Ala. App. 376, 93 So. 293, 24 A.L.R. 1359.

There is no merit in the exceptions reserved to portions of the argument of the solicitor. Mitchell v. State, 18 Ala. App. 471,93 So. 46.

The court did not err in refusing to give the general affirmative charge in favor of the defendant. The other written charges refused to defendant were either covered by the oral charge of the court, abstract, or did not state correct propositions of law, and same will not be discussed in detail.

Over the defendant's timely objection there was introduced in evidence before the jury the court file and record of conviction in a case entitled state of Alabama against "J.A. Cobb," wherein it was shown that the said "J.A. Cobb" had been convicted of the offense of selling or having in his possession prohibited liquors, in the county court of Talladega county. This was error. Lyles v. State, 18 Ala. App. 62, 88 So. 375. After the introduction of the evidence just referred to, and after, upon defendant's motion, striking from the complaint the allegation therein contained that this defendant had been upon a former occasion convicted of violating the prohibition laws, the court upon defendant's further and earnest insistence that the said evidence be excluded stated from the bench:

"That is all excluded from your consideration, gentlemen of the jury. The court takes judicial knowledge of that, and it is not before the jury."

And this:

"Gentlemen of the jury, you have heard the testimony of Mr. Cornett with reference to the identity of the two parties. This man `J.A. Cobb' is now on trial, you have heard all the testimony with reference to that, whatever the evidence was with reference to that former conviction, former record, and about the complaint. Now I am going to exclude all that from your consideration. You haven't got anything in the world to do with that previous conviction, not a thing in the world, etc."

Let it be said that the trial judge then proceeded to use his utmost efforts to completely eradicate from the minds of the jury any unfavorable impression toward the defendant that may have been made by the original introduction of the evidence under discussion. But we hold it could not be done. Defendant's motion to declare a mistrial and continue the cause should have been granted, and its refusal was prejudicial error.

The other questions raised may not occur upon another trial, and hence will not be here considered.

For the error pointed out let the case be reversed.

Reversed and remanded.