Opinion
4 Div. 43.
August 25, 1970.
Appeal from the Circuit Court, Pike County, Eris F. Paul, J.
Joel M. Folmar, J. G. Clower, John W. Gibson, Troy, for appellant.
To support a conviction on circumstantial evidence, the probative force of the facts and circumstances proved must be so conclusive as to exclude every other reasonable hypotheses or theory but that of guilt of the defendant. Hand v. State, 26 Ala. App. 317, 159 So. 275; Lloyd v. U.S., 226 F.2d 9; Blasengame v. State, 34 Ala. App. 85, 37 So.2d 225. Where the defendant could have been the only witness to have explained his constructive possession of diamonds allegedly taken from the murdered victim, the prosecuting attorney's reference, by implication, to the jury in closing argument, that no one had explained to them under oath as to how the defendant came into constructive possession of the diamonds violated defendant's right to remain silent. 1940 Code of Alabama, Title 15, Section 305, U.S.C.A. Constitution Amend. 5; Padgett v. State, 45 Ala. App. 56, 223 So.2d 597; Desmond v. United States, 345 F.2d 225; Padgett v. State, 45 Ala. App. 56, 223 So.2d 597. A new trial should be granted on motion filed within thirty (30) days from entry of the judgment when the prosecuting Attorney makes reference in his argument to the jury of the defendant's failure to testify. 1940 Code of Alabama, Title 15, Section 305; Street v. State, 266 Ala. 289, 96 So.2d 68.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
So long as substantial evidence is such as to produce a conviction of guilt upon the jurors' minds, beyond a reasonable doubt, a verdict of murder in the first degree predicated upon circumstantial evidence alone overcomes an attack based upon the insufficiency of the evidence. Coleman v. State, 276 Ala. 513, 164 So.2d 704; Id., 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190. In a murder prosecution where the appellant declines to take the stand and where the identification of certain diamonds are vital to the prosecution's case, it is not reversible error for the district attorney in closing argument to state that if the diamonds are the victim's diamonds, which the State contends they are, they don't have any other history and if they are not the victim's diamonds they have a history and if they didn't come from the victim they came from somewhere. Vinet v. State, 38 Ala. App. 299, 83 So.2d 357; Id., 263 Ala. 701, 83 So.2d 359.
Murder in the first degree; life imprisonment.
The testimony was much like that at the first trial. See 282 Ala. 268, 210 So.2d 826.
However, the four statements which Smith gave Gatlin ( 282 Ala., pp. 278-280 and 283, 210 So.2d 826) did not come into evidence on this second trial. This is true also of his statements to which Dr. Shoffeit, Sheriff Davis and Jailer Kelly testified, 282 Ala., pp. 280-282, 210 So.2d 826.
The State put one Arthur Mayr on the stand. This witness testified that he saw Smith on the Thursday night of December 12, 1963 at about 8:30 near Mrs. Boone's house, i. e., cater-cornered from it.
We have reviewed the entire record and consider that the State adduced sufficient proof which, if believed to the required degree, was enough to uphold the petty jury's verdict.
Complaint is made as to the Deputy Solicitor breaching Code 1940, T. 15, § 305 in final argument. This point we do not reach because defense counsel did not timely object to the Solicitor's remarks. The trial judge had no occasion to rule. Wilburn v. State, 41 Ala. App. 681, 149 So.2d 296.
Ordinarily a point of this sort is too late if first raised on a motion for new trial.
The judgment below is
Affirmed.