¶1— There was evidence tending to show that the defendant had large feet — wore a shoe numbered 10, or 11 or 12 — that on the evening of the fire and shortly before it occurred he started barefooted toward the house which was burned, and that at that time it was his intention to burn the house. On this state of the evidence we think it was competent for the State to show that on the next day after the fire large barefooted tracks pointing in the direction of the place where the barn had stood, and in line from the point whence the defendant had started the evening before to the house subsequently burned were found in a field about a quarter of a mile from the site of said house. In the absence of further evidence tending to connect the defendant with these tracks the jury would have been justified in according little or no probative force to this evidence, but it was for their consideration, and the court properly allowed it to go to them. — Gilmore v. State, 99 Ala. 154, 159. (The head-note on this point is misleading. See Terry v. State, 118 Ala. 79, 84-5).
¶2The solicitor transcended the bounds of legitimate argument when he stated to the jury that “the defendant should have had “Jim Ethridge present to testify that Elisha Leverett had not told him that defendant’s wife had rented the house that was burned and that he had *108not-told'liis father (defendant) so at"Henrietta Clemens’ on the evening before the house was burned, if such was' the fact.”- — Brock v. State, and Coppin v. State, (Mss.), and authorities therein cited. (Tyson; J., dissenting). And we. are of opinion that the objection to these remarks by the solicitor was properly and season, ably brought to the court’s attention, and its ruling, .invoked thereon by the request on the part of the'defendant made after the close of the argument for an instruction calling attention to the argument and to the effecc that the failure of the defendant to call and examine said witness was not matter upon .which the solicitor could legitimately comment, and that the jury could not consider it in making up their verdict. Cases may and will transpire in which the objection could not be made until argument closed, as where the objectionáble re marks constituted the conclusion of the last address to the 'jury, and' while the point does not appear to have beén directly adjudged'by this court, there aré expressions in our cases sustaining this method of presenting questions of this sort'to the trial judge, and charges upon shell arguments of counsel have not infrequently been considered by this court as seasonably and'properly pro. seating the propriéty thereof. — Haynes et at. v. McRae, 101 Ala. 318, and cases there cited; McAdory v. State, 62 Ala. 154; Stone v. State, 105 Ala. 60, 72. (Tyson and Sharpe, JJ., dissenting)
¶3It is hardly conceivable that counsel for the defendant aré serious in their contention that the affirmative chéirgé requested for the defendant should have beén given. Certainly) there is no room for saving that'there Avas. ho evit'lence before the jury tending to show that’the defendant was guilty' as1 charged in the indictment. ’
¶4'Reversed and