The question of the solicitor to witness Grigsby was highly prejudicial to defendant and was ground for a mistrial. Tannehill v. State, 159 Ala. 51, 48 So. 662; Williams v. State, 25 Ala. App. 342, 146 So. 422; Harris v. State, 22 Ala. App. 121, 113 So. 318; Jones v. State, 21 Ala. App. 234, 109 So. 189; Bynum v. State, 35 Ala. App. 297, 47 So.2d 245. Evidence that defendant has previously been convicted of a separate offense is admissible for the sole purpose of impeaching his testimony as a witness. Code 1940, Tit. 7, §§ 434, 435; Ellis v. State, 244 Ala. 79, 11 So.2d 861. Details of prior conviction are not admissible. Code, Tit. 7, §§ 434, 435; Nelson v. State, 35 Ala. App. 179, 44 So.2d 802; Chambers v. State, 264 Ala. 8, 84 So.2d 342. Trial judge has no authority to make statement to jury regarding weight to be given any evidence. Luker v. State, Ala.App., 105 So.2d 834.
Kyser v. State, 513 So.2d 68, 72 (Ala.Cr.App. 1987). Furthermore, we note that the case of Jones v. State, 21 Ala. App. 234, 109 So. 189 (1926), wherein the defendant was convicted of murder in the first degree, involved a similar issue. The appellate court held:
To find defendant guilty, under the charge, the jury must have concluded that the negligence of the driver of the second truck was not the sole proximate cause of the death. Jones v. State, 21 Ala. App. 234, 109 So. 189; Thornton v. State, 21 Ala. App. 323, 108 So. 80; State v. Campbell, 82 Conn. 671, 74 A. 927. HARWOOD, Judge.
The corpus delicti and causal connection were not established. 16 C.J. 771; Weaver v. State, 24 Ala. App. 208, 132 So. 706; Daniel v. State, 31 Ala. App. 376, 17 So.2d 542; 3 Warren, Homicides, Prem.Ed., 285; Blue v. State, 246 Ala. 73, 19 So.2d 11. It was not proved that, at the time defendant's vehicle struck deceased, defendant was doing an unlawful act amounting to a misdemeanor, or was doing a lawful act in a grossly negligent or improper manner. Jones v. State, 21 Ala. App. 234, 109 So. 189; Wilson v. State, 32 Ala. App. 591, 28 So.2d 646; Lightfoot v. State, 33 Ala. App. 409, 34 So.2d 614. Si Garrett, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., for the State.
The trial court committed reversible error in refusing defendant's motion for a mistrial on account of the prejudicial remarks of the solicitor. Stone v. State, 105 Ala. 60, 17 So. 114; Taylor v. State, 22 Ala. App. 428, 116 So. 415; Canada v. State, 22 Ala. App. 495, 117 So. 398; Bester v. State, 209 Ala. 693, 96 So. 899; Harris v. State, 22 Ala. App. 121, 113 So. 319; Jones v. State, 21 Ala. App. 234, 109 So. 189. Charlie C. McCall, Atty. Gen., for the State.
Charges 1 and 4 were proper to have been given. Crisp v. State, 21 Ala. App. 449, 109 So. 283; Jackson Dean v. State, 69 Ala. 249. It is the duty of the court to see that the defendant is tried according to the law and the evidence, free from any appeal to prejudice or other improper motive. Tannehill v. State, 159 Ala. 51, 48 So. 662; James v. State, 170 Ala. 72, 54 So. 494; Simmons v. State, 14 Ala. App. 103, 71 So. 979; Jones v. State, 21 Ala. App. 234, 109 So. 189. Charlie C. McCall, Atty. Gen., for the State.
Although the legislature may determine a need for action based upon public policy, the judiciary must be blind to the competing public-policy interests and conditions of insurer and insured, for “[j]ustice is blind, says the law, and in her judgment must see no man, color, race, or condition.” Jones v. State, 21 Ala.App. 234, 236, 109 So. 189, 191 (1926). Those times when the legislature has not acted give the Court no mandate for judicial usurpation of legislative powers, even in areas of great public concern, such as an insurer's refusal to pay a legitimate claim.
Although the legislature may determine a need for action based upon public policy, the judiciary must be blind to the competing public-policy interests and conditions of insurer and insured, for "[j]ustice is blind, says the law, and in her judgment must see no man, color, race, or condition." Jones v. State, 21 Ala. App. 234, 236, 109 So. 189, 191 (1926). Those times when the legislature has not acted give the Court no mandate for judicial usurpation of legislative powers, even in areas of great public concern, such as an insurer's refusal to pay a legitimate claim.
The variance having been called to the attention of the court, the affirmative charge requested in writing by the defendant, appellant, should have been given. Kennedy Bros. v. Mobile G. R. Co., 74 Ala. 430; North Birmingham St. Ry. Co. v. Calderwood, 89 Ala. 247, 7 So. 360; Kurn v. Counts, 247 Ala. 129, 22 So.2d 725; Louisville N. R. Co. v. Johns, 258 Ala. 440, 63 So.2d 574; Circuit Court Rule 34. The argument to the jury by appellee's attorney, wherein he referred to "the breed of the race" of the negro witness was under the circumstances of the case such an improper appeal to race prejudice as to constitute a ground for reversal of the case. Jones v. State, 21 Ala. App. 234, 109 So. 189; Perdue v. State, 17 Ala. App. 500, 86 So. 158; James v. State, 170 Ala. 72, 54 So. 494; Tannehill v. State, 159 Ala. 51, 48 So. 662; Roland v. State, 137 Tenn. 663, 194 S.W. 1097; 78 A.L.R. 1444. The amount of the verdict, under the circumstances of the case, was so excessive as to evidence bias, passion, and prejudice against appellant. Alabama By-Products Corp. v. Cosby, 217 Ala. 144, 115 So. 31; Woodward Iron Co. v. Burges, 219 Ala. 136, 121 So. 399; City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611.
Affirmed. Messrs. C.T. Graydon and J. Bratton Davis, of Columbia, for Appellant, cite: As to it being incumbent on the trialjudge to charge the law applicable to the case: 87 S.C. 532. As to evidence of the good character of the accused beingconsidered by the jury in determining his guilt or innocence: 135 Va. 750, S.E. 693, 11 F.2d 722, 271 U.S. 688, 70 L.Ed. 1152, 46 Sup. Ct. Rep. 639; 19 F.2d 202; 19 Ala. App. 521, 99 So. 66, 210 Ala. 629, 99 So. 68; 20 Ala. App. 286, 102 So. 723, 212 Ala. 410, 102 So. 726; 125 So. 790; 217 Ala. 574, 117 So. 204; 21 Ala. App. 234, 109 So. 189; 7 F.2d 458; 203 Iowa 1008, 213 N.W. 603; 21 Ala. App. 191, 106 So. 622; 18 Ala. App. 96, 90 So. 63; 22 Ala. App. 39, 111 So. 767; 156 Ga. 563, 119 S.E. 723; 23 F.2d 48; 284 S.W. 799. As to questions by solicitor concerning a former trial of defendantbeing prejudicial: 14 Am. Jur., Sec. 129; 22 C.J.S., Sec. 678; 128 S.C. 411, 123 S.E. 260; 163 S.C. 300, 161 S.E. 496; 21 Ala. App. 109, 105 So. 399; 36 Cal.App. 540, 172 P. 768; 206 Ky. 728, 268 S.W. 328; 48 Mont. 505, 139 P. 441. As to it being reversible error whencourt fails to define unusual language used in charge: 16 C.J. Par. 2360 p. 966.