Phillips v. State

Russell, C. J.

1. In a prosecution for assault and battery, where the issue was whether the prosecutor was struck by the defendant or by some one else (the accused relying upon an alibi), the language of the court (in withdrawing testimony to the effect that the prosecutor had been a witness against the defendant when the latter was on trial in the mayor’s court for selling whisky) that “the jury should not consider the fact of the defendant’s having been convicted for selling whisky,” was prejudicial error, which was not cured by the withdrawal of the testimony and by the instruction that the jury should not'consider it.

2. The remark of the court was especially prejudicial not only because it tended to put in issue the character of the defendant, but also because it supplied a fact which had not been shown even by the testimony of the prosecutor, to wit, that the defendant had been convicted of selling whisky; and this latter fact could only be shown by the record of the trial and conviction of the accused. The court, therefore, erred in overruling the motion for a new trial. Judgment reversed.