Opinion
78-434.
August 31, 1979.
Appeal from the Circuit Court, Coffee County, Riley P. Green, Jr., J.
Charles A. Graddick, Atty. Gen., and Paul E. Johnson, Asst. Atty. Gen., for petitioner.
No briefs for defendant/respondent.
This Court granted the State of Alabama's request for certiorari to review the holding of the Court of Criminal Appeals, 374 So.2d 391 that the State's attorney committed prejudicial error during his closing argument to the jury.
After a review of the opinion of the Court of Criminal Appeals, the brief filed by the State of Alabama, and after a review of the record for a better understanding of the legal question presented, we are of the opinion that the judgment of the Court of Criminal Appeals is due to be affirmed.
As pointed out in that court's opinion, the only controverted issue at the trial was the identity of the accused. The State's contention was that banker Herring had seen the accused. Mr. Herring was not a witness during the trial. Mr. Herring's ability to identify the defendant was one of the crucial issues during the trial and it is not disputed that the argument of counsel for the State was based upon a fact not in evidence.
This Court granted the writ initially in order to allow it to review whether or not the closing argument by counsel for the State was in kind, and whether the argument of the fact not in evidence was so prejudicial that it necessarily affected the substantial rights of the accused. After reviewing the petition, the brief of the State, and the record for a better understanding of the petition, we conclude that the judgment of the Court of Criminal Appeals is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.