Belk v. State , 10 Ala. App. 70 ( 1914 )

PELHAM, J.

The proceedings set out in the transcript show that the defendant' was convicted of an aggravated and apparently unjustified assault with the intent to murder, and was sentenced to ten years’ imprisonment in the penitentiary.. Counsel for the de-. fendant has called the attention of this court to the matters relied upon as constituting the errors committed by the trial court, authorizing a reversal, by malting four assignments of error on the transcript.

First it is contended that the court erred in permitting the state to examine as a witness in its behalf one Jos. Eros, who had been put under the rule and excluded from the courtroom out of the hearing of the witnesses when delivering their testimony, because of some violation of the rule by the witness. Besides this being a matter in the discretion of the court in which no abuse of discretion is shown, no objection was made by the defendant to the witness’ testifying, and no ruling of the court shown to have been invoked with respect thereto, and there is therefore no action of the court presented for review.

The second matter insisted upon is that the court was in error in overruling the defendant’s objection to the question asked the defendant on cross-examination by the solicitor: “They caught you?” This question is not shown to have been answered, and when the solicitor changed the form of the question and added to it,. “That evening away up six or seven miles above Jacksonville?” No objection was made to the question in the changed form, and the witness answered it only in that form, to which no objection was interposed.

The argument of the solicitor, made the basis of the third proposition insisted upon, was clearly based on the evidence and entirely proper and legitimate. The recitals in the bill of exceptions show that, upon the defendant’s making objection to this part of the solicitor’s argument because not based on the evidence, the court had the stenographic report of the testimony of one of the witnesses read, and that defendant’s counsel thereupon said, “Go ahead;” and, if there had been anything in the objection, this would be a waiver.

The only other matter insisted upon, is the court’s refusal to give the general charge in favor of the defendant. If a written request for the general charge Avas. made, it is not shown by anything set out in any part of the transcript, and, even if so, its refusal would clearly not have been error.

■We find no error in the record, and the judgment ol the trial court Avill be affirmed.

Affirmed.