Dickey v. State , 21 Ala. App. 644 ( 1927 )

Appellant was convicted, generally, under an indictment charging in one count distilling, etc., prohibited liquors, and in another unlawfully being in possession of a still, etc., to be used for the purpose of manufacturing prohibited liquors.

It was error to allow defendant's witness Elbert Dicky to be asked and required to answer whether or not he had been convicted of manufacturing liquor, etc. Ex parte Marshall,207 Ala. 566, 93 So. 471, 25 A.L.R. 338. However, an examination of the record convinces us that this witness' testimony exclusive of this illegal impeachment, did not tend in the slightest to prove or disprove defendant's innocence or guilt, and we would not reverse the judgment for this purely technical error. Supreme Court rule 45.

The record shows: That the trial court gave, at appellant's request, the following written charge:

"I charge you gentlemen of the jury that the evidence in this case is entirely circumstantial, and, before you can convict the defendant, you must believe from the evidence beyond all reasonable doubt that there is a complete chain of circumstances connecting the defendant with the offense or offenses charged."

And that the court, at the time of giving said charge, and in connection therewith, said to counsel for appellant, in the presence and hearing of the jury:

"I don't think that this is a good one, but I am going to give it."

To be sure, upon objection to this statement by the court, the court charged the jury explicitly that they were not to consider in any way remarks passing between it and counsel. But the court did not retract his words expressing his opinion that the charge was faulty; and we believe his remarks deprived appellant of one of his substantial rights. The charge appearing in the record as "given," of course, the appellant can get no review of its sufficiency in law; and the court's expression above quoted certainly, it seems to us, rendered the giving of said charge valueless to him. This, in our opinion, was prejudicial error.

We do not think the remarks of the solicitor in his argument to the jury transcended the rules. However, the same were on the borderland of propriety. The appellant was not entitled to have given at his request the general affirmative charge.

The other questions raised may not arise on another trial, and, since they involve only elementary principles of law, will not be discussed.

For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.