Bellany v. State

93 So. 921, 208 Ala. 696

Opinion

GARDNER, J.

Appellant was tried for the murder of one Andrew Lester, resulting in his conviction of murder in the first degree, with the infliction of the death penalty, and from the judgment! of conviction prosecutes this appeal. The only question arising upon the trial of the cause relates to the refusal of four charges which appear 'on page 4 of the transcript. These charges are manifestly erroneous and call for no separate treatment or consideration. They were therefore properly refused. A motion for new trial was made, and evidence taken-orally before the court, based upon the ground of newly discovered evidence. This motion the court has carefully considered, and, aside from a consideration of the character of this evidence, the defendant utterly failed to meet the requirements of the rule of due diligence, as set forth and established by the decisions of this court. Girardino v. B’ham. South. Rwy., 179 Ala. 420, 60 South. 871; L. & N. R. R. Co. v. Burke, 198 Ala. 99, 73 South. 416; Fries v. Acme White Lead Co., 201 Ala. 613, 79 South. 45. Mindful of our duty and responsibility in cases of (his character, wo have carefully examined the record, and, finding no reversible error therein, the judgment of conviction will be here affirmed. Affirmed. All the Justices concur.