# Kenny v. State

> Court of Criminal Appeals of Alabama · May 15, 1973 · 51 Ala. App. 35

URL: https://www.frixlaw.com/law-library/cases/9658995

## Case

- **Full name:** Deborah Renee KENNY, Alias v. STATE
- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** May 15, 1973
- **Citations:** 51 Ala. App. 35; 282 So. 2d 387; 1973 Ala. Crim. App. LEXIS 1110
- **Precedential status:** Published
- **Opinion:** On rehearing by Cates
- **Judges:** Cates, Almon, Harris, Decarlo, Tyson
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9658995

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9658995. Public record. Not legal advice.