Whitfield v. State

• Decision Date: 31 August 1926
• Docket Number: 7 Div. 170
• Citation: 21 Ala.App. 490,109 So. 524
• Parties: WHITFIELD v. STATE.
• Court: Alabama Court of Appeals

109 So. 524

21 Ala.App. 490

WHITFIELD v. STATE.

7 Div. 170

Court of Appeals of Alabama

August 31, 1926

Appeal from Circuit Court, Shelby County; E.S. Lyman, Judge.

L.W Whitfield was convicted of violating the prohibition laws and he appeals. Reversed and remanded.

Leeper Wallace & Saxon, of Columbiana, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

We cannot accord to the insistence of appellant that the defendant was entitled to the general affirmative charge, as there was some evidence tending to show his participation in the operation of the still in question. This evidence made a jury question; therefore the court was without authority to direct a verdict in his behalf, and did not err in refusing the affirmative charge. Suttle v. State, 19 Ala.App. 198, 96 So. 90.

This case will have to be reversed however, because of the improper and highly prejudicial conduct of the solicitor who, instead of trying the issues involved upon this trial, made repeated efforts to inject into the trial the fact that this defendant at another time and place, and since the time here complained of, had been caught making liquor. The attempt upon the solicitor's part to inject into this trial this patently illegal, irrelevant, immaterial, and incompetent evidence was repeated several times, and this, after the court had sustained the defendant's objections to the questions thus propounded. The manner of the solicitor in asking these improper questions, and his conduct in this connection before the jury, was manifestly improper and unfair to defendant, and of necessity tended to prejudice the defendant to the extent that a fair and impartial trial could not be accorded him. Counsel for defendant, realizing the highly unfavorable and prejudicial status thus engendered, very promptly and properly moved the court that a mistrial be declared and the case be taken from the jury on account of the improper and prejudicial conduct of the solicitor in persisting and continuing to ask these improper questions, even though the court had ruled that they were improper and had made a request of the solicitor to avoid that line of inquiry. Matters of this kind are largely within the discretion of the court; but that discretion is not an unbridled or unlimited one, and if it appears, as here, this discretion has been abused to injury of the substantial rights of the accused, the ruling will be...