Opinion
1 Div. 928.
January 13, 1931.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
A. W. Waldorf was convicted of violating the prohibition law, and he appeals.
Affirmed.
J. W. Wallace, of Mobile, for appellant.
Because of the remark of counsel for the state to the jury, a mistrial should have been ordered. Jones v. State, 21 Ala. App. 33, 104 So. 878; Patterson v. State, 21 Ala. App. 22, 104 So. 866; Brasher v. State, 22 Ala. App. 79, 112 So. 535.
Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty. Gen., for the State.
Applications for a continuance are largely within the discretion of the court, and, unless it is shown that there has been an abuse of discretion, the judgment will not be reversed. Morrow v. State, 19 Ala. App. 212, 97 So. 106.
Appellant was convicted of the offense of violating the prohibition laws by having in possession, etc., whisky.
The evidence on the part of the state was clear, direct, and positive, to the effect that appellant was guilty as charged. That on behalf of appellant was of a contrary nature. The issues were for the jury.
The record presents nothing worthy of comment, other than an incident involving the propriety, vel non, of the trial court's action in overruling a motion, made during the course of the trial, by the appellant's counsel, to declare a mistrial, and order a continuance of the cause.
It appears that as court adjourned for the lunch hour, both the state and the defendant (appellant) agreed that the jury, trying the case, might separate. The trial court gave the usual cautionary instructions to the jury, and temporarily discharged them. Whereupon, as one of the jurors passed out of the room, the Hon. Marion Vickers, the assistant solicitor, prosecuting for the state, remarked to him jokingly, "That cuts you out of your dinner."
Upon reconvening, after the lunch hour, appellant's counsel, after first asking that the jury be excused, made the motion above referred to. It was overruled, we think, without error. The trial court was very careful in his investigation as to the circumstances under which the said remark was made, its substance, etc. And he reached and announced the conclusion that appellant's rights had suffered no prejudice. We are not prepared to say he was in error.
It might not be out of place, though, to admonish counsel to refrain from conversation with jurors, of any sort, out of their box, during the trial of causes.
The judgment is affirmed.
Affirmed.