Bell v. State, 86 So. 139

BRICKEN, P. J.

[1] The defendant was convicted of the offense of. grand larceny. On appeal here, counsel assign errors, which, of course, is permissible in a criminal case, and mandatory in all appeals in civil matters.

[2-5] From a careful reading of this record, it is difficult to understand upon what theory it is so strenuously urged (both in the oral argument made to this court and in brief and argument on file) that the court erred in refusing the general charge requested by defendant. There is no conflict in the testimony with reference to the commission of the crime by some one; the corpus delicti is proven without dispute; and there is a positive identification by the injured parties of the defendant as being the man who committed the offense. The venue was clearly proven ,by witness Ananias Thompson and by two other witnesses. Ananias testifying that it occurred in Birmingham, Jefferson county, at or near the-depot of the Louisville & Nashville Pailroad, in said city. Rosa Thompson that, “It happened here in, Birmingham,” and witness Matlock “that it happened in this county,” all or any of which is amply sufficient to establish the venue, for the court judicially knows that Birmingham, Ala., is situate in Jefferson county. There was also other evidence from which proof of venue could be inferred. But pretermitting all this, the defendant could not avail himself of the ruling of the court in refusing the general affirmative charge, unless the grounds upon which it was requested were brought specifically to-the attention of the trial court, and this-fact must, on appeal, be affirmatively shown by the record, which is not the case here. Ray v. State, 16 Ala. App. 496, 79 South. 620; circuit court rule 35; McPherson v. State, 198 Ala. 5, 73 South. 387. The court did not err in refusing to give this charge.

There are several assignments of error re lating to the rulings of the court on the testimony. Each of the exceptions has been carefully examined, and we are clearly of the opinion that they are free from all error which would prejudice the substantial rights of the defendant. It would’ serve no good purpose to deal separately with each of these exceptions, and we deem it sufficient to say that no error of a reversible nature appears.

[6, 7] The court’s oral charge when taken as a whole, as we must take it, is free from error, and the exceptions reserved to several portions thereof are without merit. That portion of the oral charge relating to the alibi of defendant is also free from error. Porter v. State, 55 Ala. 105; Kilgore v. State, 74 Ala. 1; Carter v. Chambers, 79 Ala. 231; Wray v. State, 2 Ala. App. 139, 57 South. 144.

The evidence in this case, as shown by the record, was of that character, from its conflicts and contradictions, to make it a question for the jury. After a consideration of the whole record we are of the opinion that the case was properly, and without reversible error, submitted to the jury for its determination.

The judgment of the circuit court is therefore affirmed.

Affirmed.

Case Details

Case Name: Bell v. State

Court Name: Alabama Court of Appeals

Date Published: Feb 10, 1920

Citations: 86 So. 139; 17 Ala. App. 399; 1920 Ala. App. LEXIS 71; 6 Div. 603.

Docket Number: 6 Div. 603.

Court Abbreviation: Ala. Ct. App.