Gains v. State

43 So. 137 | Ala. | 1907

DOWDELL, J. —

The bill of exceptions recites that a demurrer Avas overruled to the affidavit. The record does not sIioav any demurrer or ruling thereon by the court, otherwise than by the recital in the bill of exceptions. This is insufficient to present the question for revieAv on appeal. — McQueen v. State, 138 Ala. 63, 35 South. 39; Broadhead v. State, (Ala.) 40 South 216, and cases there cited.

The bill of exceptions recites that “the defendant asked the court in writing to give the jury the following-charges,” and then follows charges numbered from 1 to 4, inclusive, and concludes: “The above written charges requested by the defendant to be given to the jury, and refused by the court. The defendant duly excepts and reserves the same for the consideration of the Supreme Court.” The request was general, and, unless all of the charges were good and should have been given, the exception is unavailing. — Johnson v. State, 141 Ala. 37, 37 South. 456, and cases there cited. Charge No. 1 was the general affiramtive charge to find the defendant not guilty. There was sufficient evidence from which the jury were authorized to find him guilty.

On the authority of Farrall v. State, 32 Ala. 557, and Freiberg v. State, 94 Ala. 91, 10. South. 703, and the reasons there stated, the burden of proof was not on the state to prove the negative averment in the affidavit. This was matter of defense particularly within the knowledge of the defendant.

We find no error in the record, and the judgment will be affirmed.

Affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.