6 Div. 926.

149 So.2d 5 (1963)

Samuel Bernard McGHEE v. STATE of Alabama.

Supreme Court of Alabama.

Attorney(s) appearing for the Case

MacDonald Gallion, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for petitioner.

Douglas Hendrix, Tuscaloosa, opposed.

SIMPSON, Justice.

Appellant was convicted of robbery and sentenced accordingly. He appealed to the Court of Appeals, which reversed the judgment of the Circuit Court and the State filed a petition for certiorari in this Court to review the opinion and judgment of the Court of Appeals.

One Richard C. Harris was the victim of the robbery and the prosecuting witness. Harris testified that he had been a minister of the Gospel for several years. In the closing argument of the solicitor to the jury, the solicitor stated: "I know this man of God told you the truth, he is on God's side, gentlemen, and God is on his".

The majority opinion of the Court of Appeals (Judges Price and Cates) ruled the foregoing statement of the solicitor to be reversible error as being a statement of an outside fact not borne out by the evidence. Judge Johnson dissented, believing that the stated argument was within the limits of "reasonable and authorized inference from the evidence"; that the argument of the solicitor was within the limits of reasonable, forensic debate.

On a consideration of the matter by this Court, LIVINGSTON, C. J., and LAWSON, GOODWYN, COLEMAN and HARWOOD, JJ., concur in the opinion of the majority of the Court of Appeals. The writer and MERRILL, J., dissent, being of the view that the opinion of Judge Johnson is a correct exposition of the applicable rule.

It results that the judgment of the Court of Appeals is affirmed.


SIMPSON and MERRILL, JJ., dissent.


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