Opinion
7 Div. 956.
April 18, 1933. Rehearing Denied May 9, 1933.
Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.
Bethel Bell was convicted of unlawfully possessing a still, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Bell v. State (7 Div. 202) 148 So. 752.
Thos. W. Millican and Haralson Son, all of Fort Payne, for appellant.
The remarks in argument of the solicitor were statements of fact, not supported by the evidence. Their tendency was to influence the finding of the jury. The fact that the trial court sustained objections to the remarks did not remove their prejudicial effect, and the motion for mistrial should have been granted. McGrew v. State, 21 Ala. App. 266, 107 So. 328; Anderson v. State, 209 Ala. 36, 95 So. 171; B. R., L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence both as to the guilt vel non of the defendant and as to venue was in sharp conflict, and appellant's counsel recognizing this confines his argument to an insistence that the judgment should be reversed for and on account of the remarks of the solicitor and the refusal of the court to halt the trial, declare a mistrial, and continue the case. There was no motion to set aside the verdict.
The remarks of the solicitor were improper and so recognized by the court in its rulings. We do not think, however, that the remarks were of such a nature as to require a withdrawal of the case from the jury as moved for by defendant. There is no ironclad rule by which the prejudicial character of improper remarks or argument of counsel can be ascertained in all cases, much depending upon the issues, parties, and general circumstances of the particular case. Bridgeforth v. State, 16 Ala. App. 584, 80 So. 158; Anderson v. State, 209 Ala. 36, 95 So. 171.
In passing upon these questions much must be left to the sound judgment of the trial judge. In this case we cannot say that the trial judge was in error in his rulings on this question.
We find no prejudicial error, and the judgment is affirmed.
Affirmed.