Opinion

Powell v. State

  • 39 Ala. App. 246
  • 100 So. 2d 38
  • 1957 Ala. App. LEXIS 57
Court
Alabama Court of Appeals
Filed
Aug 13, 1957
Status
Published
On the bench
Cates
Cited by
11 cases
Authority
More cited than 7.7%

The opinion

On Rehearing

The appellant insists that the distinction between our reasoning here and that in our opinion in Bevins v. State, 97 So.2d 572 , 1 is without any valid difference. There the prejudicial harm came about through a statement in argument that Bevins committed an assault in 1952 for which there was no supporting evidence. This was bad (a) because it charged an unconnected crime (not within permissible exceptions), and (b) because it was not inferable from the evidence.

Here we have what seems to be a case of first impression, i. e., whether or not rhetorical questions partake of argument rather than constitute examination of a witness. Following this question, we were next led to consider whether or not an appellate court can discern any rule to calculate the effect of the use of such questioning. Without attempting to be infallible, we have, albeit as through a glass darkly, perceived two principles (first, the trial judge’s opportunity to observe the effect on the jury and, second, the circumstance that the substance of the questions derived from matters already in evidence) to guide us in what is an uncharted course. On balancing the pros and cons, we adhere to our original affirmance.

Inasmuch as the Bevins case is now before our Supreme Court on a petition for certiorari, and since this case may or may not be distinguishable as reasonable men differ, we have extended this opinion to clarify our reasons • for deciding as we have.

The application for rehearing is

Overruled.

. Ante, p. 228.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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