Spears v. State

Alabama Court of Appeals

Spears v. State

114 So. 477, 22 Ala. App. 257, 1927 Ala. App. LEXIS 159

CourtAlabama Court of Appeals

DecidedNovember 22, 1927

Docket4 Div. 332.

StatusPublished

Cited by2 cases

This text of 114 So. 477 (Spears 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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Spears v. State, 114 So. 477, 22 Ala. App. 257, 1927 Ala. App. LEXIS 159 (Ala. Ct. App. 1927).

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Opinion

SAMFORD, J.

One witness testified that he bought three pints of whisky from defendant on a certain Sunday morning, and that it was at the house where defendant lived with his parents. The evidence for defendant tended to prove an alibi and to impeach the testimony of the only state’s witness. The defendant, testifying in his own behalf, said that, at the time alleged by the state, he was at the home of Phonzo Wise. It was shown that Wise and his wife lived in Coffee county, and about four and a half miles from defendant, and were at home at the time of this trial.

The solicitor in his closing argument said to the jury:

“If the defendant was at the home of his brother-in-law, Phonzo Wise, on the Sunday that it is said that he sold the whisky to the state’s witness Gus Daughtry, then why didn’t the defendant have Phonzo Wise, and his wife, Donie Wise, here to testify to that fact, because the defendant says they were at home, and he could have gotten them as witnesses, if they knew the facts as he says.”

There were objections to this by defend- ' ant, and motion to exclude with rulings on the questions adverse to defendant.

The action of the court was error. Many of the authorities sustaining the reversal of this judgment are collated in McDaniel v. State, 20 Ala. App. 407-411, 102 So. 788.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

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SAMFORD, J.

One witness testified that he bought three pints of whisky from defendant on a certain Sunday morning, and that it was at the house where defendant lived with his parents. The evidence for defendant tended to prove an alibi and to impeach the testimony of the only state’s witness. The defendant, testifying in his own behalf, said that, at the time alleged by the state, he was at the home of Phonzo Wise. It was shown that Wise and his wife lived in Coffee county, and about four and a half miles from defendant, and were at home at the time of this trial.

The solicitor in his closing argument said to the jury:

“If the defendant was at the home of his brother-in-law, Phonzo Wise, on the Sunday that it is said that he sold the whisky to the state’s witness Gus Daughtry, then why didn’t the defendant have Phonzo Wise, and his wife, Donie Wise, here to testify to that fact, because the defendant says they were at home, and he could have gotten them as witnesses, if they knew the facts as he says.”

There were objections to this by defend- ' ant, and motion to exclude with rulings on the questions adverse to defendant.

The action of the court was error. Many of the authorities sustaining the reversal of this judgment are collated in McDaniel v. State, 20 Ala. App. 407-411, 102 So. 788.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

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114 So. 477, 22 Ala. App. 257, 1927 Ala. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spears-v-state-alactapp-1927.

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