Patton v. State , 156 Ala. 23 ( 1908 )

DENSON, J.

The first exception seems to have been reserved to the action of the court in overruling an objection to a question propounded to one of the state’s witnesses; but the question is not set out in the bill of exceptions, and hence the "ruling of the court cannot be reviewed. For the same reason the exception reserved by defendant while witness Shipp was being examined by the solicitor cannot be reviewed.

The testimony of the first witness for the staté showed that the defendant fired three shots from a pistol, one of which killed the deceased. Davidson, a witness for the state, having testified that he was a policeman, testified that he went to the place where the killing occurred, and looked for the defendant, but could not find him; that he was boarding with á negro (Orr) in East Decatur, and that witness went there and searched for him, but could not find him. The bill of exceptions then recites: “The state asked the witness what else he found. The defendant objected to the question, and moved to exclude all answers thereto. The court overruled the objection, and allowed the witness to answer the question.” In this form it is obvious that only the ruling of the court overruling the objection to the question is presented for review. The objection was a general one, and the court was under no duty to cast around for the ground upon which it was rested, and committed no error in overruling it.

The witness testified that he found in defendant’s room, at Orr’s house, three 41-caliber “cartridges” ly ing on the table. The solicitor then asked, “Did the cartridges appear to be fresh fired?” The question was objected to on the grounds of immateriality, irrelevancy, and that the witness was not shown to be expert. The relevancy and materiality of the evidence sought is apparent; and this court has expressly held that a witness, though not an expert, may testify that a cartridge seemed to he freshly fired. Therefore the court cannot be put in error for overruling the objections to the question. — Orr’s Case, 117 Ala. 69, 23 South. 696.

Charge 16, besides being involved and confusing, does not state a correct proposition of law, and its refusal involves no error.

Charge 17, is argumentative, and invasive of the province of the jury, and was properly refused.

Charge 20 exacts too high a degree of proof, and its refusal was proper.

Charge 22, rightly interpreted, means that, if a witness has been contradicted by “other circumstances and facts of the case,” the jury may capriciously disregard his evidence. Such is not the law, and is probably not the proposition intended to be asserted in requesting the charge. No error was committed by its refusal.

Charge 23 was, if for no other reason, properly refused because it does not hypothesize that the false swearing was willfully done; and No. 24 is bad because it pretermits materiality of the “particular” in the proposition asserted. It particularizes no witness, and it cannot be said that all that has been testified by the witnesses, as shown in this record, was material evidence. —A. G. S. R. R. Co. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28.

Charge 25, in defendant’s series, is a mere argument.

There is no foundation for the general affirmative charge requested by the defendant, and it was properly refused.

In criminal cases, motions for new trial are not revisable. — Burrage’s Case, 113 Ala. 108, 21 South. 213; Knight’s Case, 103 Ala. 48, 16 South. 7.

No error being shown by the record, the judgment of conviction is affirmed.

Affirmed.

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