Opinion
6 Div. 549.
January 13, 1925.
Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge. Sam McGee was convicted of manslaughter in the second degree, and he appeals. Reversed and remanded.
William J. Foster and Livingston, Smith Livingston, all of Tuscaloosa, for appellant.
The argument of the solicitor was not founded on the facts of the case, and the court erred in not excluding such argument. Cross v. State, 68 Ala. 476; Piano v. State, 161 Ala. 88, 49 So. 803; Naro v. State, 209 Ala. 614, 96 So. 761; Guin v. State, 19 Ala. App. 67, 94 So. 788.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
There are many questions presented by this record, which will probably not arise on another trial, and the other questions have so many times been passed on by this court and the Supreme Court that a discussion of them would be but a reiteration of principles many times decided. There is one question presented which entitles the defendant to a reversal. The solicitor, during his argument to the jury, said: "The defendant was down there that day with a belly full of liquor and a gun, and did just what a man with a belly full of liquor and a gun would do." There was no evidence in the record to bear out this statement. On the contrary, the testimony of the witness, of whom inquiry as to this fact was made, was: "If he was [drunk], I couldn't tell it; never smelled it; could not detect it in his conversation." Certainly it was error for the solicitor to go outside the record to make a statement of a fact not testified to by any witness. This case is reversed, on authority of Naro v. State, 209 Ala. 614, 96 So. 761. Reversed and remanded.