LIVINGSTON, Chief Justice.
Lankford Lawley was tried in the Circuit Court of Shelby County, Alabama, on an indictment containing two counts; one count charging rape, and the other charging carnal knowledge of, or abuse in the attempt to carnally know, Linda Sue Bass, a girl under the age of twelve years. He was found guilty and his punishment fixed at life imprisonment in the state penitentiary. The court entered a judgment accordingly, and it is from this judgment that the appeal is taken.
The appellant's principal contention is that reversible error was committed by the trial judge in instructing the jury as to the possibility of parole in case the defendant were convicted and sentenced to serve time in the penitentiary. The state admits error, but argues that the error was cured by subsequent remarks by the trial judge.
The transcript reveals that after the case had been submitted to the jury, and the jury had retired to the jury room, the
"By Juror: Will he always be eligible for parole?
"By the Court: It is possible with a life sentence if he makes a good record he might qualify for parole in 15 years, maybe, that is altogether up to the Board of Pardons. Gentlemen, if that information is helpful, that is as near as I can tell you about it.
"By Mr. Rabren: We except to the Court's remarks."
As a result of these remarks by the trial judge, the case must of necessity be reversed. In the recent case of McCray v. State, 261 Ala. 275, 74 So.2d 491, this court held that in arriving at a proper sentence to be imposed on a defendant, the proportionate part thereof which probably or possibly might be deducted therefrom by the Parole Board was not a proper factor to be considered by the jury, and it is error for the court to instruct the jury as to the laws or customs governing the granting of paroles. In the light of that decision, the trial court in the case now before us unquestionably was in error in his remarks made in response to the juror's inquiry.
The withdrawal of the remarks by the court did not cure the error which had been committed. Where the withdrawal of a prejudicial remark by a judge is not sufficient to remove the impression which that remark has made upon the minds of the jurors, the defendant is entitled to have a new trial free from the influence of such prejudicial remarks. Mosley v. State, 241 Ala. 132, 1 So.2d 593. As was said in Oliver v. State, 232 Ala. 5, 166 So. 615, 617:
In the present case, it is reasonable to assume that the jury wished to punish the defendant by having him serve a certain number of years in the penitentiary,
This situation is analogous to that discussed in Booth v. State, 22 Ala.App. 508, 117 So. 492, and Maryland Casualty Co. v. McCallum, 200 Ala. 154, 75 So. 902. In each of those cases, the court admitted illegal testimony and then later in the trial directed in an unemphatic manner that the testimony be excluded. The court held that where the effort to correct the error appears to be a mere formality and has no practical effect to correct the impression that has been created on the mind of the jury, the error cannot be said to be cured.
Having determined that a reversal must result from the above-stated error, we will not treat the other matters urged as error, for they are not likely to reoccur in another trial.
Reversed and remanded.
SIMPSON, GOODWYN and SPANN, JJ., concur.