On Rehearing. Upon a further consideration of the facts in this case, as shown by the record, and the rulings of the court in several instances, we have reached the conclusion that the application for rehearing should be granted, the order of affirmance set aside, and the judgment of the lower court reversed, and the cause be remanded.
The homicide complained of was the result of a controversy between the defendant and deceased as to defendant having traveled a path through the yard of deceased, and the state contended that he so traveled said path after having been warned not to do so. This contention was strenuously denied by defendant. In order to ascertain who was the aggressor and who was at fault in provoking or bringing on the difficulty in which Glenn, the deceased, met his death, it was highly important to know whether the contention of the state or that of the defendant in this connection was correct. This being true, we are of the opinion that the court erred in not sustaining the motion of defendant to exclude that portion of the testimony of witness Wallace Glenn, brother of the deceased, wherein he testified "that defendant certainly was traveling the path in question," when it was shown that this portion of said witness' testimony was not based upon facts within his own knowledge, but was merely hearsay. The witness Glenn himself in reply to the question by defendant's counsel, "Did you see him traveling it?" answered "No, sir."
State witness Ethel Glenn, wife of deceased, on rebuttal examination stated:
"No, sir, he walked as straight as he ever did, and then his little girl ran out to meet him, and asked him if he had got her any candy, and he told her No."
The court properly sustained defendant's objection to the latter portion of this answer, but, notwithstanding this fact, over the objection of defendant, permitted counsel for state to quote this testimony to the jury and to comment upon same during his argument. In overruling the seasonable objection of defendant in this connection the court committed error. Sanford v. State, 143 Ala. 78, 39 So. 370. Counsel should not be permitted *Page 271 comment upon facts not before the jury, or not legally competent and admissible as evidence. McAdory v. State, 62 Ala. 154,163; Sullivan v. State, 66 Ala. 48; Dollar v. State,99 Ala. 236, 13 So. 575.
In the course of his argument the solicitor made use of the expression, "We have got to stop this business of running around making widows and orphans." It is conceded that this was improper. As stated by the court, "that is not a proper argument." And the solicitor recognized this also, and stated, "We will withdraw the statement." The vital issue in this case was whether or not the defendant took the life of deceased in an unlawful manner. The contention of the state was that he did, and the state's testimony appears to bear out this contention. On the other hand, the defendant strenuously insisted that in taking the life of deceased he acted within his rights conferred by the law; that he was free from all fault in provoking or bringing on the difficulty; that he was in imminent peril of losing his life or suffering grievous bodily harm from the deceased at the time he fired the fatal shot, and that there was no reasonable mode of escape without apparently increasing his peril. It appears that the testimony of defendant and his witness sustain him in this contention. It thus became a question of fact for the jury to determine, and in so determining, the issues involved should be submitted to the jury free from any appeal to prejudice or other improper motive. If as a consequence of this unfortunate homicide it resulted, as may be judged from the record, that a widow and orphans were left to mourn the death of deceased, this fact of itself could shed no light upon the issues involved, and the defendant's cause should not be burdened by unauthorized statements of this character, for the law makes no distinction in matters of this nature. A man with wife and children can be accorded no more rights under the law than a man without such wife and children, and that an expression of this character might be calculated to highly prejudice the minds of the jury under given circumstances and conditions cannot be doubted. It often happens that in trials of this character the loved ones of the deceased and the defendant appear in court and sit with counsel inside the bar, and in the presence of the jury many pitiable scenes are thus depicted. And in such surroundings impassioned arguments by counsel, accompanied by such unauthorized statements as here, "We have got to stop this business of running around making widows and orphans," are certainly calculated to engender unduly the sympathies of the jury on the one hand, or to inflame their minds with prejudice and passion upon the other hand. Such unauthorized remarks have no place in a trial where on the one hand a defendant's life or his liberty is involved, and on the other the proper administration of the law is concerned. It is not insisted that counsel for the state deliberately made use of the objectionable expression. In fact counsel for defendant very generously states in his brief:
"We feel that in using these words to the jury that this appellant was done a great injustice; we feel, however, that it was unintentional on the part of the solicitor that the statement was made in his argument as a climax," etc.
The question here presented we think comes clearly within the rule announced in the following cases: Tannehill v. State,159 Ala. 51, 48 So. 662; Stephens v. State, 17 Ala. App. 548,86 So. 111; Scott v. State, 110 Ala. 48, 20 So. 468; Standridge v. Martin, 203 Ala. 486, 84 So. 266, and cases cited.
The application for rehearing is granted, the order of affirmance set aside, and the judgment of conviction in the lower court is reversed, and the cause remanded.
Application granted.
Reversed and remanded.