Petty v. State

110 So. 2d 325 | Ala. | 1959

Petition by James A. Petty for certiorari to the Court of Appeals to review and revise the opinion and decision of that court in Petty v. State,110 So.2d 319.

Petitioner charges error in the Court of Appeals' holding that the trial court did not err in refusing to give his requested written charges 8 and 14.

As to charge 8, the Court of Appeals states several reasons why it thought the charge was properly refused. In determining whether certiorari should issue it is not necessary that we discuss or pass on all of such reasons. One is that charge 8 "states an abstract principle of law, and is not based on the evidence, nor does it make any reference to the effect of the principle set forth to the issues in the case." In order for us to determine whether the charge is abstract it would be necessary that we go to the record and examine the evidence. This would not be proper on certiorari.

As to charge 14, the Court of Appeals held that no error resulted from its refusal in "view of the court's oral instructions." Other reasons are also given in support of its holding. But there is no necessity of dealing with them. We have held that when there is a question whether a requested written charge is substantially covered by the trial court's oral charge a question of law is presented, imposing on us the duty of examining the oral charge and determining the question of coverage. Barber Pure Milk Company v. Young, 263 Ala. 100,102, 81 So.2d 328; Redwine v. State, 258 Ala. 196, 200,61 So.2d 724; Brown v. State, 249 Ala. 5, 7-8, 31 So.2d 681. We have examined the oral charge and find, as did the Court of Appeals, that charge 14 was substantially covered by the oral charge.

The writ of certiorari is due to be denied.

Writ denied.

LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.