It cannot be questioned that the conviction of this appellant rested upon the testimony of state witness Dave Upton. In other words, in the absence of this witness' testimony there was nothing in this case to even cast a suspicion upon this defendant as to the commission of the crime charged. There was no evidence whatever of any bad feeling between deceased and defendant. No motive or reason for his having committed the offense was shown; no confession upon the part of defendant; in fact, nothing was shown of an incriminatory nature except the statement of said witness Upton, who merely testified that between sundown and dark on Saturday afternoon, March 22, 1924, he saw this defendant and Bascom Gilbert and Walter Gilbert (the deceased) walking up the road together about 150 or 200 yards from Walter Gilbert's house. Witness said that he (witness) was out of the road in a thick patch of corn. The dead body of Walter Gilbert was discovered the following Monday morning in some wood in a pasture between a half and three quarters of a mile from the main road.
We pretermit a discussion of the many discrepancies, contradictions, and uncertainties apparent in the testimony of witness Upton, and also the tendency of other evidence flatly in contradiction thereof; namely, the testimony of young Marvin Gilbert, son of the deceased man, as well as that of several other witnesses. But, as stated hereinabove, there can be no controversy that the conviction of this defendant rested solely upon the testimony of said state witness Dave Upton, and that in the absence of his testimony the duty would have rested upon the court to direct a verdict in favor of defendant, and to order his discharge. This being true, refused charge 3 was in point and should have been given, for the jury are not authorized to find the defendant guilty on the evidence of a witness, upon whose testimony the question of guilt depends, if they have a reasonable doubt of the truth of his statements.
For like reason, it was error to refuse charge 11 requested by defendant. Mills v. State, 1 Ala. App. 76, 55 So. 331; Estes v. State, 18 Ala. App. 606, 93 So. 217; Segars v. State, 86 Ala. 59,5 So. 558; Kilgore v. State, 19 Ala. App. 181, 95 So. 906; McHan v. State, ante, p. 117, 101 So. 81.
Refused charge 5, being predicated upon the consideration of all the evidence, should have been given. Elmore v. State,92 Ala. 51, 9 So. 600.
We see no reason why refused charge 8 should not have been given. This charge was not abstract under the evidence in this case; to the contrary, it relates to the vital issue involved upon this trial. In the oral charge the court stated:
"In this case the state's insistence is that Parrish Gilbert, the defendant you are trying, and Bascomb Gilbert, his codefendant, one or the other fired the fatal shot that is said to have taken the life of Walter Gilbert. The state's insistence is that this one that is on trial fired the shot, and therefore he is guilty, etc."
Charge 8 referred to is predicated upon a consideration of all the evidence; and certainly, if after the jury has considered all the evidence in the case they still have a reasonable doubt in their minds as to the presence of the defendant near the scene of the killing, the defendant should be given the benefit of such doubt, and an acquittal of the defendant should have followed. The charge is pertinent also in that the defendant insisted that he was not present, and offered testimony of several unimpeached witnesses of an alibi, in other words, that he was elsewhere at the time the life of Walter Gilbert was taken.
We are not prepared to hold that the defendant was entitled to the instructions contained in refused charges 12 and 13, each *Page 567 of which was the affirmative charge. But, after a careful reading and consideration of all the evidence, it is manifest that the proof in this case falls far short of the convincing satisfying evidence necessary to overcome the presumption of innocence which under the law attended this accused. The offense charged was a grievous one, and certainly resort to suspicion, speculation, or conjecture should not be indulged in order to foist the crime upon this defendant.
We cannot approve of the argument of the solicitor complained of by appellant, for it was in violation of the statute which prohibits counsel to comment directly or indirectly upon the fact that the defendant did not make the request to testify in his own behalf; and the objectionable argument appears to have been an adroit manner of calling to the attention of the jury the fact that the defendant did not testify in his own behalf as a witness. We cannot predicate error in this connection, however, for the reason no motion was made to exclude the objectionable argument from the jury, nor was this matter urged or presented on the motion for a new trial. Appellate courts cannot revise judgments on account of improper statements of counsel in argument, as we review only the action and rulings of nisi prius courts. In order to bring questions growing out of improper arguments of counsel properly before the appellate court for revision, the trial court must first be appealed to, to remedy the wrong by eradicating any effect the improper argument may have had from the minds of the jury, through appropriate instructions given them at the time, and by other means necessary to accomplish this purpose; and, if the court fails to act, or acts erroneously, an exception must be reserved to the act or omission of the court, and thus the question will be brought before us for revision. A mere exception as to what the solicitor said is not sufficient; the exception must be reserved to what the court did or failed to do.
For the errors indicated, the judgment of conviction appealed from is reversed and the cause remanded.
Reversed and remanded.