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Cooper v. State

Court of Appeals of Alabama
Jun 2, 1959
112 So. 2d 804 (Ala. Crim. App. 1959)

Opinion

1 Div. 798.

June 2, 1959.

Appeal from the Circuit Court, Washington County, Joe M. Pelham, Jr., J.

Edw. P. Turner, Chatom, for appellant.

The argument by the solicitor constituted a comment on the failure of defendant to take the stand and testify in his own behalf, as prohibited by the statute. Code 1940, Tit. 15, § 305; Harris v. State, 33 Ala. App. 623, 36 So.2d 254; Everage v. State, 33 Ala. App. 291, 33 So.2d 23; Street v. State, 266 Ala. 289, 96 So.2d 686.

MacDonald Gallion, Atty. Gen., and Jerry L. Coe, Asst. Atty. Gen., for the State.

In order for the appellate court to pass intelligently upon question of propriety of solicitor's alleged remarks as to accused's failure to testify, enough of the remarks must be incorporated in the record to inform the court as to what was actually said, mere statements of opposing counsel being insufficient. Johnson v. State, 35 Ala. App. 645, 51 So.2d 901; Robinson v. State, 37 Ala. App. 403, 71 So.2d 843; Id., 260 Ala. 700, 71 So.2d 846; Autry v. State, 34 Ala. App. 225, 38 So.2d 348; Pate v. State, 32 Ala. App. 365, 26 So.2d 214; Warren v. State, 32 Ala. App. 302, 25 So.2d 695; Id., 247 Ala. 595, 25 So.2d 698; Espey v. State, 31 Ala. App. 351, 17 So.2d 430.


Cooper has appealed his conviction of grand larceny of a truck; the judgment includes a sentence of two and one-half years in the penitentiary.

The defendant did not testify.

During argument at the close of the evidence, the court reporter's transcript shows:

"During the arguments of counsel to the jury the following objections and rulings of the court were made:

* * * * * *

"Mr. Turner: I object and move for a mistrial because Mr. Gilmore in arguing the case said, 'If I had been him I would have got up here and said "I quit right now".'

"Judge Pelham: I overrule the objection and deny the motion.

"Mr. Turner: I except."

We consider this remark is of the kind which our statute (Code 1940, T. 15, § 305) forbids the solicitor to make. Curlette v. State, 25 Ala. App. 179, 142 So. 775, furnishes a somewhat similar remark, but there the trial judge sustained the objection and advised the jury to ignore the comment.

"There isn't any testimony here, he just threw up his hands here and quit, he didn't have any testimony here that he could deny it." Quoted in Welch v. State, 38 Ala. App. 239, 81 So.2d 897, 898.

Judge SAMFORD said that, while the error was cured, the comment was improper.

Reversed and remanded.


Summaries of

Cooper v. State

Court of Appeals of Alabama
Jun 2, 1959
112 So. 2d 804 (Ala. Crim. App. 1959)
Case details for

Cooper v. State

Case Details

Full title:Billy COOPER v. STATE

Court:Court of Appeals of Alabama

Date published: Jun 2, 1959

Citations

112 So. 2d 804 (Ala. Crim. App. 1959)
112 So. 2d 804