Opinion
6 Div. 169.
June 7, 1932. Rehearing Denied June 30, 1932.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Alonzo Ashby was convicted of grand larceny and buying or receiving stolen property, and he appeals.
Affirmed.
The subject of the larceny was an automobile, the property of one Nix. State's witness Tartwater testified that he saw the defendant on the night this automobile was stolen, and made a search of the car for prohibited liquors; that he did not then know the car had been stolen, but later determined this fact, and that he had no warrant for the arrest of the defendant. Witness was asked: "Did he (defendant) tell you he had gone down to the sheriff and seen the sheriff and fixed up everything all right?" The witness answered, "Yes, Sir." Thereupon counsel for defendant objected. The court said: "Yes. I sustain the objection; let that pass out, gentlemen." Defendant's counsel then said, "That is brought out to prejudice the jury." The court: "I instruct the jury to give no consideration to it." Counsel for defendant then moved the court to discharge the jury and enter a mistrial on the ground that the matter was "a fact that cannot be discharged from the jury's mind." The court then stated to the jury: "Gentlemen, I will ask each one of you if you feel that you can decide the case according to the legal evidence, and not consider any illegally question asked? Do you feel you can decide this case without being influenced by any illegal matter that comes in? Do you? (Which question was asked each juror, and each juror answering in the affirmative.)" Thereupon the court overruled the motion to discharge the jury and enter a mistrial, and defendant excepted.
Bolivar B. O'Rear, of Jasper, for appellant.
When the question was asked by the solicitor, insinuating that defendant had another case which he had fixed with the sheriff, and the witness answered the question, the injury had been done, and the only way to remedy it was to declare a mistrial and give the defendant the benefit of a new jury. Met. L. L. Co. v. Carter, 212 Ala. 212, 102 So. 130; Tenn. C. I. R. Co. v. Kelly, 163 Ala. 348, 50 So. 1008; Montg. S. R. Co. v. Hastings, 138 Ala. 432, 35 So. 412; James v. State, 170 Ala. 72, 54 So. 494; Lane v. State, 85 Ala. 11, 4 So. 730; Tannehill v. State, 159 Ala. 51, 48 So. 662; Simmons v. State, 14 Ala. App. 103, 71 So. 979.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
An error in the admission of evidence is cured by striking it out or withdrawing it from the jury. Mizell v. State, 184 Ala. 16, 63 So. 1000; Carden v. State, 203 Ala. 173, 82 So. 423; Lumpkin v. State, 19 Ala. App. 273, 97 So. 171; Moseley v. State, 19 Ala. App. 335, 97 So. 247.
Appellant was convicted, generally, upon his trial under an indictment consisting of two counts; the first, charging him with the offense of grand larceny; and the second, the offense of buying, receiving, concealing, etc., stolen property of the value of more than $25, knowing it was stolen, etc. Code 1923, §§ 4905, 4912.
There is really very little, if anything, that should be said by us.
The evidence was ample to support the verdict and judgment.
No exceptions, worthy of mention, were reserved during the taking of testimony, other than, perhaps, that reserved to the action of the court in overruling appellant's motion to declare a mistrial, as for the admission in evidence of an improper allusion to another charge pending against him.
As for this, it appears that the court clearly, definitely, specifically, and promptly excluded same from the jury's consideration, and charged them forcefully and, we think, effectively, not to let it influence them in any way.
The matter referred to was not, in our opinion, of such a nature that its effect was ineradicable, and we are convinced that the action taken by the court was entirely sufficient to relieve appellant of any harmful effects caused by it.
We have carefully searched the record for error of a prejudicial nature, but find none.
And the judgment of conviction is affirmed.
Affirmed.