Clayton v. State , 244 Ala. 307 ( 1943 )

The Court of Appeals, in large part, rests the reversal upon the denial of the motion for a new trial; and it appears clear enough this ruling in turn is rested upon the theory that, upon consideration of all the facts and circumstances, the verdict was contrary to the preponderance of the evidence, though the opinion does not so state in so many words. Under our limited review of the opinion of the Court of Appeals, that conclusion of fact is not here reviewable. Tortomasi v. State, 238 Ala. 253,189 So. 905; Milazzo v. State, 238 Ala. 241, 189 So. 907.

In view of another trial of the cause, we may add that we are not to be understood as being in accord with the further holding of the Court of Appeals concerning the inadmissibility of the testimony as to the footprints on the wall. There is not here presented, as in Moore v. State, 4 Ala. App. 65,59 So. 189, cited in the opinion, any question as to the identity of the defendant. That was undisputed, and therefore not in issue. But it would seem this testimony was admissible as descriptive of the surrounding facts and circumstances and as a part of the res gestae.

With the limitations herein discussed, we are at the conclusion the writ must be denied. It is so ordered.

Writ denied.

BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.