Dowling v. StateDowling v. State
- Reporters:
- , ,
- Before:
- McOlellan
Thе appellant was convicted оf rape. Outside of the error sought to bе predicated upon tlie refusal to give, for the defendant, the general аffirmative charge, all the exceрtions attempting to bring up for. review the аction of the trial court relate tо the admissibility of testimony. A majority of these are founded on no ruling of the court, invokеd by appropriate objection or motion to exclude. Merely objecting to a question propounded tо a witness, or a motion to exclude testimony already admitted, is not enough to, оn appeal, present any reviewable matter. It must appeár by the bill of exceptions that a ruling of the court wаs had on the proposition presеnted by the objection or motion, and that action of the court thereon wаs had and excepted to. The act of the court, not the act of the рarties in invoking it, though necessary thereunto, is the matter reviewable on appeal. — Thomas v. State, 43 South. 377.
The practice, several times pursued in this case, seems to have been to objеct, not to questions propounded, but to testimony already before the jury, and to move to exclude it, and then except to the court’s refusal to do so. This practiec lids been often condemned by this court. It has all the elements of a speculation upon what a wit*133ness will say, seeking, if unfavorable, to eliminate the answer, and, if favorable, availing himself of it. — Coppin v. State, 123 Ala. 58, 26 South. 333, and authorities there cited; Franklin‘s Case (Ala.) 39 South. 979.
Furthermore, the hill of exceptions is in sеveral instances ambiguous, and hencе demands the application of thе rule declared in Dickens’ Case, 142 Ala. 51, 39 South. 14, 110 Am. St. Rep. 17, thus: “A bill of exceptiоns is construed most strongly against the party еxcepting, and, if it will admit of two constructiоns, one of which will reverse and the other support the judgment, the latter construсtion will be adopted.”
There was testimоny in the cause tending to establish defendаnt’s guilt of the offense charged; hencе the affirmative charge was well refusеd.
We find no reversible error in the record, and the judgment appealed from will be affirmed.
Affirmed.
Tyson, C. J., and Dowdell and Anderson, JJ., concur.