Abrams v. State

| Ala. | Apr 16, 1908

McCLELLAN, J.

The court correctly refused to give to the jury the charge, requested by the defendant, on the trial of the issue raised hv the plea of misnomer. The misleading tendency of the charge appears to be that the jury might thereby have been impressed that, though in Monroe county he was known as named in the indictment, yet, if he was not so known irrespective of county lines, the fact that he was so known in Monroe county was not to he taken as within the issue presented; whereas, if he Avas known in Monroe county as named in the indictment, the plea could not be said to be sustained.

The admission by the court of the testimony of McKenzie of a purchase of liquor from this defendant on the occasion in question, as limited by the court to the purpose to identify the defendant as the party making the sale for which the prosecution was then in progress, was proper. — McIntosh’s Case, 140 Ala. 137" court="Ala." date_filed="1903-11-15" href="https://app.midpage.ai/document/mcintosh-v-state-6520332?utm_source=webapp" opinion_id="6520332">140 Ala. 137, 37 South. 223.

After stating a part of the court’s oral charge to the. jury, the hill recites that the.“defendant objected to the court’s charge as above set out, and called the court’s attention to said part of his general charge, and entered objection to same before the jury retired to. consider their verdict.” This proceeding by defendant does not present for review the matter complained of. The offices of objections and exceptions in our practice are too distinct to admit of confusing. Where a part of tbe oral charge by the court is conceived by a party to be erroneous or improper, in order to invoke the review thereof by this court, that party must except thereto, not object. An objection on a trial is the appropriate method to require the court’s ruling, upon which an exception may be taken, and it is the exception, and not the objection, that is reviewed here, though, of course, the ruling oi action of the court must be properly invited by the objection. Here the court was instructing the jury, as is its province,. and the defendant merely stated, by his objection, his dissatisfaction with the oral charge set out, without excepting thereto as an erroneous expression of the particular matter stated. It has been often ruled here that even a properly interposed objection does not afford predicate for a review of the matter, unless action of the court thereon is shown.

Charge 2, requested by the defendant, was well refused, because it hypothesizes that evidence of good character, taken in connection with all the evidence in the case, is sufficient to generate a doubt; whereas, such character, if proven, may at most suffice, in connection with all the other evidence, to generate such doubt. It is also bad, since it assumes such a result, whether the evidence of good character is believed or not. The charge probably has other vices.

Charge which we number 3 was properly refused on the score, among others, that it predicates its conclusion upon a “sale by McKenzie,” when there was no such testimony introduced on the trial. It was shown that McKenzie bought liquor from the defendant on the occasion in question. The charge is otherwise erroneous.

There is no prejudicial error in the record, and the judgment is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.