referring to Ala.Code § 12-22-240 as a “lazy lawyer” statute
How later courts described this case
- referring to Ala.Code § 12-22-240 as a “lazy lawyer” statute
Written by the judges who cited it.
The opinion
ON REHEARING
CATES, Presiding Judge.
In his brief accompanying the application for rehearing appellant’s counsel invites us to equate Thomas v. State, 18 Ala.App. 268 , 90 So. 878 with the case at bar as one of ineradicable prejudice by the prosecutor in closing argument.
In Thomas (a homicide) the rhetoric referred to stopping “making widows and orphans.” The trial judge merely said, “That is not a proper argument.” In Rogers v. State, 275 Ala. 588 , 157 So.2d 13 there was another distinct ground for reversal apart from a reference to the accused’s depriving the wife and children of deceased of his companionship. Hence, we think the portion of the Rogers keyed to head note 9 was calling the trial court’s attention propter aliud examen so as to avoid the recurrence of the admittedly erroneous argument.
On original deliverance we cited My-hand, supra, because we relied on the trial judge’s action as showing an expungement in this case. We distinguish Thomas, supra, which we think is a case wherein the trial judge ruled in casual and perfunctory manner without even stating to whom his statement was addressed. We do not treat Thomas as an example of ineradicable prejudice, but rather a case of an apathetic or perfunctory action by the trial judge.
Here the contrary appears with first, the instruction to “completely disregard Mr. Brunson’s last remark” and second, the polling of the jury as to each of them having a clean slate for a fair and impartial verdict.
The application for rehearing is hereby
Overruled.
CATES, P. J., and ALMON, HARRIS and DeCARLO, JJ., concur.
TYSON, J., not sitting.