1 Div. 489.
April 5, 1928. Rehearing Denied.
Gordon, Edington Leigh, of Mobile, for appellant.
The argument of the solicitor constituted reversible error. Cross v. State, 68 Ala. 484; American Ry. Exp. Co. v. Reid, 216 Ala. 479, 113 So. 507; Hundley v. Chadick, 109 Ala. 582, 19 So. 845; Stone v. State, 105 Ala. 65, 17 So. 114; Anderson v. State, 104 Ala. 85, 16 So. 108; Scott v. State, 110 Ala. 53, 20 So. 468; Birmingham Nat. Bank v. Bradley, 116 Ala. 150, 23 So. 53.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
It is a settled rule that this court, upon certiorari, will review the Court of Appeals only on questions of law, and not upon the finding of fact or application of the law to the facts, or the application of the doctrine of error without injury, unless the facts are fully stated in the opinion of the Court of Appeals so that a review may be effected without an examination of the record filed in the Court of Appeals. Postal Tel. Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Birmingham So. R. Co. v. Goodwin, 202 Ala. 599, 81 So. 339; Campbell v. State, 216 Ala. 295, 112 So. 902; Ex parte Steverson, 211 Ala. 597, 109 So. 912. This precludes a review of the Court of Appeals in dealing with the refusal of the affirmative charge where, as here, all the facts of the case are not stated in the opinion of the Court of Appeals.
This leaves but a single question open for review in this case; i. e., the court, over the objection of the defendant, allowed the solicitor in his opening argument to read section 7705 of the Code to the court, and to state to the jury "that he had been denied, by the ruling of the court, of the privilege of proving by expert testimony the handwriting of the defendant," as we take it, on the check alleged to have been forged.
The practice of permitting counsel to read the law to the court in the presence of the jury, and of reading statutes or excerpts from the opinions of this court declaring the law, when applicable to the case in hand, is a practice that has often been approved as an exercise of the constitutional right of a party to be heard. L. N. R. Co. v. Cross, 205 Ala. 626, 88 So. 908.
At the same time, it has often been declared that it is not permissible for counsel in argument to state facts not in evidence, and when this rule has been infringed upon, with injurious consequences, reversible error is the result. The decisions have been recently reviewed and clarified in the case of American Ry. Exp. Co. v. Reid, 216 Ala. 479, 113 So. 507.
The statement of the solicitor complained of in this case was clearly improper, but it was the statement of an occurrence that took place during the trial in the presence of the jury, and was met by the statement of the presiding judge:
"I did not deny you the right to prove the genuineness of the writing by experts; I said that you had that right in your main case, and that the jury has the right to compare them, and I am going to so charge them."
Under these circumstances we are of opinion that the statement of the solicitor was without injury and could not have in any way influenced the verdict.
Writ denied; application for rehearing overruled.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.