The refusal of written charge No. 12 was prejudicial error. Motes v. State, 20 Ala. App. 195, 101 So. 286.
The appellants, father and son, it appears, were confined a considerable length of time in jail previous to and up to the day of trial. Their son and brother, Alvin Wade, who does not appear to have been in the state when the offense for the alleged commission of which his relatives were tried was committed, was, on the day of the trial, subpœnaed as a witness for the state, and upon the state's request placed under the rule. The defendants objected to this, stating to the court that Alvin Wade had been active in looking after their defense, and was familiar with the facts, and that his advice and presence was necessary to enable their counsel to properly present their case. Alvin Wade was not a witness for the defendants and he was never used as a witness for the state. We think the action of the court in excluding him from the courtroom during the trial and thereby denying the defendants, through their attorneys, the benefit of his suggestions as to the proper examination of witnesses, etc., constituted an abuse of the trial court's discretion in such matters.
The other questions raised on this appeal involve only elementary principles of law. No good purpose would be served by our discussing them. On another trial they will not likely arise.
Reversed and remanded.