152 So. 468 | Ala. | 1934
It is urged that the bill of exceptions does not show that the exception to a portion of the oral charge which the Court of Appeals held to be erroneous was reserved before the jury retired. That opinion recites that the record shows that at the conclusion of the court's oral charge counsel gave notice of the exception.
This court held in Central of Georgia R. Co. v. Courson,
The attempt to make the distinction in the Courson Case, supra, was unnecessary then, and we think there is no reason for such distinction, and that the best policy is to make a plain statement to that effect.
Although the Donahoo Case, supra, has been followed in a later case by the Court of Appeals (Wade v. State,
We think in the instant case the Court of Appeals should have, as they did, considered the exception to the portion of the oral charge which was noted to occur at its conclusion. It is clear that, taken by itself, the excerpt to which exception was taken is not an accurate or correct statement of the law for the reasons noted in that opinion. If its erroneous effect was eradicted by other features of that charge, or by the charge as a whole, this does not appear in the opinion of the Court of Appeals. When that opinion does not show the matter which it is claimed renders the error harmless, we cannot consider that question. Ex parte Steverson,
Petitioner argues that the Court of Appeals reversed the judgment for the additional reason that the motion for a new trial should have been granted because the verdict was contrary to the great weight of the evidence when the bill of exceptions does not show an exception to the ruling of the trial court on that motion. The absence of such an exception is not shown in the opinion of that court. We review it on the questions which it shows, considers, and passes on, and no others.
Moreover, the reversal of the judgment of the circuit court is shown by that opinion to have been necessary for other reversible error, so that it is not material to the result of the appeal whether or not there was such error in overruling the motion for a new trial. Since the opinion of the Court of Appeals does not show that it is based upon any misconception of applicable principles, the writ of certiorari is denied.
Writ denied.
All the Justices concur.