Kirkwood v. State , 184 Ala. 9 ( 1913 )

ANDERSON, J.

— This court has repeatedly laid down and followed the rule that it will revise the rulings of the Court of Appeals upon certiorari only as to questions of law, and not upon a finding of facts, or in the application of the facts to the law. — Livingston v. State, 181 Ala. 94, 61 South. 54; Ex parte Savannah Williams, 182 Ala. 34, 62 South. 63; Ex parte Western Union Co., 183, Ala. 451, 63 South. 88. Therefore, the holding of the Court of Appeals that the record failed to disclose an exception to the ruling of the trial court in overruling objections as to certain parts of the evidence of Tom Dye was a finding upon facts, and is a ruling which we will not revise.

It may be that charge 15, refused the defendant, was held to be good in Bluett v. State, 151 Ala. 41, 44 South. 84, and which fact was recognized in the opinion of the Court of Appeals, but the refusal of said charge was justified in the instant case for the reason it was abstract in so far as it hypothesized the previous making, by the deceased, of threats against the defendant. This was a finding of the nonexistence of a fact upon which the charge was in part based, and which said finding we will not review; and, assuming, therefore, that it was true, the said charge, was properly refused. A charge held good in one case which hypothesizes certain facts need not necessarily be given in another case when facts hypothesized did not exist. The report of the Bluett Case does not disclose any. proof of threats by the deceased, but it is evident that there was proof of same, or the court would not have approved the charge; or the fact that itwas abstract, if such was the case, was overlooked.

The Court of Appeals did not condemn the defendant’s refused charge 17, but justified its refusal because covered by given charges. This was a finding of the existence of a fact, but we may concede that this finding involved a mixed question of law and fact; still we agree with the Court of Appeals that the defendant got the full benefit of said refused charge 17 in some of the charges given.

The certiorari is denied.

Dowdell,, C. J., and McClellan and Somerville, JJ., concur. Mayeield and Sayre, JJ., dissent.