Bazzell v. State , 18 Ala. App. 609 ( 1922 )

The appellant was convicted under an indictment which charged him with the manufacture of whisky, and of having a still in his possession to be used for the purpose of manufacturing whisky.

This court will not review the action of the trial court in overruling the appellant's motion for a new trial, for the reason that is does not appear what, if any, evidence was offered in support of the motion. It was competent for the state's witness Scarbrough to testify, over the defendant's objection, as to the size of the man that ran away from the still, at the time of the alleged arrest of the defendant. This witness had previously testified that the defendant was the person arrested and that such arrest was made after he made an attempt to run off.

No objection was made on the trial as to the proper predicate being laid for the introduction of the confession of the defendant to the witness Scarbrough, and, if objection had been timely made, it would be unavailing, as the record discloses such confession to have been voluntarily made, without threats or inducements of any kind being made or offered.

The contrary not appearing from the record, this court will presume that the lower court properly admitted the alleged confession of the defendant to the witness Crow, and that the proper predicate was laid for the admission of such confession. Green v. State, 168 Ala. 92, 53 So. 286; Price v. State,117 Ala. 113, 23 So. 691. Moreover, there was no objection made nor exception taken to the ruling of the court in this respect.

The witness Manning testified that he did not see the defendant arrested, "but heard, as I came home that night, that he was arrested." The defendant made a motion to exclude that portion of witness' testimony in which he stated, "I heard that night as I came home," etc. Evidently there was no error in overruling the motion to that part of the answer as set out above. If the defendant had desired the benefit, if any there was, to the court's ruling, he should have set out fully the portion of the answer to which his objection was addressed.

We find no error in the record, and the judgment appealed from is affirmed.

Affirmed.