Opinion
4 Div. 332.
November 22, 1927.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
Larue Spears was convicted of violating the prohibition law, and he appeals. Reversed and remanded.
J. C. Fleming and J. N. Ham, both of Elba, for appellant.
No unfavorable argument to the jury is permissible by counsel against the defendant in a criminal case because of his failure to call a witness who is accessible to both the state and defendant and may be called by either to testify. Elliott v. State, 19 Ala. App. 263, 97 So. 115; Forman v. State, 190 Ala. 22, 67 So. 583; Earle v. State, 1 Ala. App. 183, 56 So. 32; Du Bose v. Conner, 1 Ala. App. 456, 55 So. 432; Hutcherson v. State, 165 Ala. 16, 50 So. 1027, 138 Am. St. Rep. 17; Ethridge v. State, 124 Ala. 106, 27 So. 320.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
One witness testified that he bought three pints of whisky from defendant on a certain Sunday morning, and that it was at the house where defendant lived with his parents. The evidence for defendant tended to prove an alibi and to impeach the testimony of the only state's witness. The defendant, testifying in his own behalf, said that, at the time alleged by the state, he was at the home of Phonzo Wise. It was shown that Wise and his wife lived in Coffee county, and about four and a half miles from defendant, and were at home at the time of this trial.
The solicitor in his closing argument said to the jury:
"If the defendant was at the home of his brother-in-law, Phonzo Wise, on the Sunday that it is said that he sold the whisky to the state's witness Gus Daughtry, then why didn't the defendant have Phonzo Wise and his wife, Donie Wise, here to testify to that fact, because the defendant says they were at home, and he could have gotten them as witnesses, if they knew the facts as he says."
There were objections to this by defendant, and motion to exclude with rulings on the questions adverse to defendant.
The action of the court was error. Many of the authorities sustaining the reversal of this judgment are collated in McDaniel v. State, 20 Ala. App. 407-411, 102 So. 788.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.