Carroll v. State, 4 Div. 657
Decision Date | 21 January 1969 |
Docket Number | 4 Div. 657 |
Citation | 45 Ala.App. 92,225 So.2d 198 |
Parties | Lenwood CARROLL v. STATE. |
Court | Alabama Court of Appeals |
Jas. M. Prestwood and Griffin Sikes, Andalusia, for appellant.
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Appellant was indicted by the Grand Jury of Covington County, Alabama for the offense of transporting prohibited liquor. After pleading not guilty, he was tried by a jury, found guilty as charged and sentenced by the court to a term of two years in the penitentiary.
Deputy Sheriff Arell Berry testified that on the afternoon of February 20, 1967, he saw the appellant at his home. Berry's testimony was in part as follows:
'Q. Tell us what happened when you saw him there? What you were doing and what he was doing and everything?
'A. Well, I saw the tractor coming through the field. I had pulled up there and stopped, waiting for him to come on out, wanted to talk with him, and he got in thirty-one steps of me, stopped; he raised up, stood up on the runningboard of it, and when he discovered it was me, he just knocked it out of gear and left the tractor running and jumped off and run.
'
'
On cross-examination of Berry the following colloquy occurred:
'
'
'
Appellant contends in brief that the testimony of the witness as set out hereinabove was so prejudicial as to be ineradicable from the minds of the jury and that it was error for the trial court to refuse to order a mistrial and to overrule the motion for a new trial.
The motion to exclude the statement, 'when he discovered it was me,' made by Sheriff Berry was properly overruled as the witness was testifying as to what he observed.
The statement by the witness as to the fact that he didn't think he could outrun the appellant was in response to the question asked by counsel for the appellant.
The additional volunteered statement that, 'I had run Mr. Carroll one time', was improper. However, we are of the opinion that this statement was not ineradicable. Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501. Thus, had a timely motion to exclude the statement been made, such motion should have been granted. However, no motion to exclude was made. In the absence of such motion by appellant, the court was under no duty to do so ex mero motu. As the statement was eradicable, the trial judge correctly overruled the motion for a mistrial. Tit. 30, Sec. 100, Code of Ala., 1940. Thomas v. Ware, supra.
We,...
To continue reading
Request your trial-
Van Antwerp v. State
...argument on the motion. The mistrial was properly denied because the question by the prosecution was eradicable. Carroll v. State, 45 Ala.App. 92, 225 So.2d 198 (1969). Only the question was in the record and a mistrial would have been too drastic a penalty in such a posture. Crouch v. Stat......
-
Poellnitz v. State
...we find no error in the denial of appellant's motion for a mistrial. Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501; Carroll v. State, 45 Ala.App. 92, 225 So.2d 198. IV On redirect examination of the State's witness, Deputy Garner, the following 'Q. You stated on cross examination by Mr. Wi......
-
Hamilton v. State, 3 Div. 721
...made a motion for a mistrial. This motion was denied, and properly so. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Carroll v. State, 45 Ala.App. 92, 225 So.2d 198. During closing arguments appellant made a second motion for a mistrial. The prosecutor was merely referring to facts already ......
-
Duncan v. City of Birmingham
...whether a jury should be discharged and a mistrial granted. Hurt v. State, Ala.Cr.App., 361 So.2d 1163. See also, Carroll v. State, 45 Ala.App. 92, 225 So.2d 198. We have examined the record and transcript of evidence and have found no error prejudicial to this appellant. Therefore, the jud......