This is an appeal from a judgment of guilt of grand larceny and sentence of three years imprisonment based on a verdict in the Shelby Circuit Court.
At the conclusion of the State’s case at the defendant’s request the jury withdrew and then the defendant moved to exclude the evidence. This motion was overruled and the defense took over.
During final argument the record shows:
“Objection To Argument
“By Mr. Wallace: We object to the statement of the solicitor, if they hadn’t brought enough evidence to convict this defendant the Court would not have allowed the case to go to the jury.
“By Mr. Fowler: If the Court please, I was only answering the argument of counsel for the defendant.
“By The Court: Overrule the obj ection.
“By Mr. Wallace: We except and ask the jury be instructed that is improper argument.
“By The Court: I deny your motion.
“By Mr. Wallace: I except.”
The case, aside from a purported extra judicial statement by the defendant, was one of circumstantial evidence. It was proper for the defendant to argue that the State had not made a case since without a confession the evidence was ambivalent and therefore the weight of the confession and the tendency of the evidence toward a reasonable doubt or toward the alternative of petty larceny were obvious subjects for argument.
Even though the jury was absent at the court’s ruling on the motion to exclude, we cannot say there were not jurors familiar enough with criminal trials as to be aware of the purpose of the retirement. Hence we do not consider the jury’s earlier absence lessened the prejudicial effect of the solicitor’s argument. Indeed the implication that the court had ruled there was a prima facie case can be said to be argument upon an issue not before the jury. Thus in Missouri-Kansas-Texas R. Co. of Texas v. Ridgway, 8 Cir., 191 F.2d 363, 369, 29 A.L.R.2d 984, in discussing argument to jury held prejudicial the court said:
“* * * In so far as such argument was based upon what occurred before the jury it might have been warranted but it was based upon or claimed to be justified by what occurred during the hearing of various motions, a matter entirely foreign to the issues to be tried by the jury.”
“In view of the uniform holding of this court on this question we can not hold that the defendant has had a fair and impartial trial and that the verdict was not the result of passion and prejudice aroused by the appeals of counsel in his argument. It is to be noted too that while the defendant’s counsel made timely, objection to the argument of counsel their objections were overruled and counsel was permitted to proceed without reprimand and without instructions to the jury to disregard the improper remarks.”
We reverse and remand for the above error upon authority of Adkins v. State, 38 Ala.App. 659, 93 So.2d 519.
Reversed and remanded.