Taylor v. State
| Decision Date | 10 April 1928 |
| Docket Number | 3 Div. 578 |
| Citation | 22 Ala.App. 428,116 So. 415 |
| Parties | TAYLOR v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.
Fred Taylor was convicted of grand larceny, and he appeals. Reversed and remanded.
Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
The controlling question in all criminal prosecutions is the guilt or innocence of the person accused. But, however guilty the defendant may appear to be from the evidence, he is nevertheless entitled to a fair and impartial trial, and before a judgment of conviction can be permitted to stand upon appeal, it must affirmatively appear that the trial below proceeded throughout without prejudicial and substantial error.
In reviewing the case at bar this court need go no further than the conduct of the solicitor who, by his repeated efforts and insistences in argument and otherwise, injected into this case prejudicial matters not in the record and foreign to any of the issues involved upon the trial, yet were calculated to erroneously and injuriously affect the substantial rights of the accused. The office of solicitor is of the highest importance; he is the representative of the state, and as a result of the important functions devolving upon him as such officer necessarily holds and wields great power and influence, and as a consequence erroneous insistences and prejudicial conduct upon his part tend to unduly prejudice and bias the jury against the defendant; this, without reference to the instructions of the court. The test in matters of this kind is not necessarily that the conduct of the solicitor complained of did have such effect upon the jury, but might it have done so? We are of the opinion that there was ample legal evidence in this case to carry the question of the guilt or innocence of the accused, as to the crime charged, to the jury. As to whether or not the defendant was a bootlegger, also, what might have or did happen at the preliminary proceedings as to whether or not certain witnesses were there examined, and whether the bank had turned down a certain check of the defendant, and other insistences of like character, injected or sought to be injected into this case by the solicitor, were foreign to the issues involved upon this trial, and appellant's contention in this connection must, of necessity, be sustained. We are not authorized to hold that these matters did not injuriously affect the substantial rights of the defendant for their natural tendencies are conclusively to the contrary.
Under the showing made for a continuance in this case, and the undisputed facts disclosed in connection therewith, we hold that no abuse of discretion of the trial court is shown, and therefore no error was committed by the court in this connection....
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...that the conduct of the solicitor complained of did have such effect upon the jury, but might it have done so?" Taylor v. State, 22 Ala.App. 428, 429, 116 So. 415, 416 (1928); Jones v. State, 23 Ala.App. 493, 495, 127 So. 681 (1930); Bynum v. State, 35 Ala.App. 297, 298, 47 So.2d 245, cert.......
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