Lucas v. State

Alabama Court of Appeals

Lucas v. State

137 So. 902, 24 Ala. App. 468, 1931 Ala. App. LEXIS 93

CourtAlabama Court of Appeals

DecidedJune 30, 1931

Docket7 Div. 788.

StatusPublished

Cited by7 cases

This text of 137 So. 902 (Lucas v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lucas v. State, 137 So. 902, 24 Ala. App. 468, 1931 Ala. App. LEXIS 93 (Ala. Ct. App. 1931).

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Opinion

SAMEORD, J.

The state made out its case by the testimony of one witness. The facts as testified to were not denied, nor did the defendant testify in his own behalf. In his opening argument to the jury the solicitor said: “Why didn’t the defendant go on the stand and testify in his own defense, if he was not guilty.” This remark was objected to by defendant, and the objection was promptly sustained. The defendant then moved for a mistrial, which motion was overruled; the court instructing the jury as follows: “Gentlemen, under the law, the defendant does not have to take the stand unless he elects to do so, and if he does not go on the stand he is not held responsible for it, and his not going on the stand is not to be considered by you in this case. That is his privilege, he can either take the stand in his own defense or he can remain off the stand if he chooses, and you are not to consider the fact in this case that the defendant has not taken the stand.”

The remark of the solicitor was error ¿nd so recognized by the trial judge. Under the evidence, the jury could have rendered but one verdict, and the fine of $75 assessed by them would not indicate that the remark of the solicitor had influenced their minds to such extent as to be reflected in the verdict. The court did all that was necessary in the premises, and did not err in refusing to grant the motion for a mistrial. '

We find no error in the record, and the judgment is affirmed.

Affirmed.

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SAMEORD, J.

The state made out its case by the testimony of one witness. The facts as testified to were not denied, nor did the defendant testify in his own behalf. In his opening argument to the jury the solicitor said: “Why didn’t the defendant go on the stand and testify in his own defense, if he was not guilty.” This remark was objected to by defendant, and the objection was promptly sustained. The defendant then moved for a mistrial, which motion was overruled; the court instructing the jury as follows: “Gentlemen, under the law, the defendant does not have to take the stand unless he elects to do so, and if he does not go on the stand he is not held responsible for it, and his not going on the stand is not to be considered by you in this case. That is his privilege, he can either take the stand in his own defense or he can remain off the stand if he chooses, and you are not to consider the fact in this case that the defendant has not taken the stand.”

The remark of the solicitor was error ¿nd so recognized by the trial judge. Under the evidence, the jury could have rendered but one verdict, and the fine of $75 assessed by them would not indicate that the remark of the solicitor had influenced their minds to such extent as to be reflected in the verdict. The court did all that was necessary in the premises, and did not err in refusing to grant the motion for a mistrial. '

We find no error in the record, and the judgment is affirmed.

Affirmed.

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137 So. 902, 24 Ala. App. 468, 1931 Ala. App. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucas-v-state-alactapp-1931.

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