Cooper v. State

112 So. 2d 804, 40 Ala. App. 308, 1959 Ala. App. LEXIS 365

Opinion

CATES, Judge.

Cooper has appealed his conviction of grand larceny of a truck; the judgment includes a sentence of two and one-half years in the penitentiary.

The defendant did not testify.

During argument at the close of the evidence, the court reporter’s transcript shows:

“During the arguments of counsel to the jury the following objections and rulings of the court were made:

* * * * * *

“Mr. Turner: I object and move for a mistrial because Mr. Gilmore in arguing the case said, ‘If I had been him I would have got up here and said “I quit right now”.’

“Judge Pelham: I overrule the objection and deny the motion.

“Mr. Turner: I except.”

We consider this remark is of the kind which our statute (Code 1940, T. 15, § 305) forbids the solicitor to make. Curlette v. State, 25 Ala.App. 179, 142 So. 775, furnishes a somewhat similar remark,¹ but there the trial judge sustained the objection and advised the jury to ignore the comment.

Judge SAMFORD said that, while the error was cured, the comment was improper.

Reversed and remanded.

Footnotes

1

. “There isn’t any testimony here, he just threw up his hands here and quit, he didn’t have any testimony here that he could deny it.” Quoted in Welch v. State, 38 Ala.App. 239, 81 So.2d 897, 898.