St. John v. State

Insistence is made that this judgment should be reversed because the solicitor in his closing argument stated that the witness Hopper had testified that the defendant immediately after the murder said that he had done what he came down there to do. As a matter of fact this record discloses that the statement excepted to was not made by the witness Hopper, but by the witness Mrs. Lamb, the wife of the dead man. It has been frequently held by this court that, when the solicitor makes a statement in argument of a prejudicial nature, as a fact, when such fact is not the evidence, the appellate court for such error will reverse the judgment, provided in the opinion of the court the defendant was injured thereby. But, where the fact stated has been testified to, and therefore is in evidence, the mere fact that the solicitor, in argument, attributes the statement to one witness, when it should have been another, will not be grounds for reversal. This holding is not in conflict with Gibson's Case, 193 Ala. 12, 69 So. 533, nor with any other decision brought to our attention. The facts are in evidence, and, being in, are the subject of legitimate comment; as to which witness testified to the particular fact was before the jury, and they would know as to this. Any other conclusion would be a reflection on the intelligence of the jury and the jury system.

The questions propounded to Mrs. Lamb and to the wife of defendant seeking to prove the details of a former difficulty were properly disallowed. There are some cases where it is held that certain acts may be shown at the time of the making threats at the time of a prior difficulty as going to show the extent and magnitude of the difficulty, but no decision has ever said that details of a former difficulty might be gone into.

The statement of defendant to the witness Castro was in the nature of a threat and was admissible independently of a predicate.

In view of given charge 17 and the general instructions of the court in its oral charge, the refusal of written charges unnumbered on page 30 of the transcript, if error, were without injury to defendant.

The court in its oral charge and by written charges has fully covered the law as outlined in refused charges 3 and 11, and, while charge 3 is subject to criticism for other reasons, every proposition to which the defendant was entitled bearing on the subject embraced in the charges has been fully covered.

We find no error in the record, and the judgment is affirmed.

Affirmed.