Formby v. Williams

81 So. 360, 17 Ala. App. 24, 1919 Ala. App. LEXIS 57

• Court: Alabama Court of Appeals
• Decided: March 18, 1919
• Docket: 7 Div. 566.
• Status: Published

Opinion

BRICKEN, J.

[1] There are twenty-one assignments of error in this case, but the appellant, in bis brief, only insists upon three. Under the uniform rulings of this court and of the Supreme Court, the assignments of error not insisted upon will be treated as waived. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 South. 158; Johnson v. State, 152 Ala. 93, 44 South. 671; Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 South. 604.

This was an action in detinue by the appellee, plaintiff in the court below, against the appellant, defendant in the court Delow. The defendant was examined as a witness in his own behalf, and, upon being asked if he had been convicted in a, criminal court of being a common cheat and swindler, denied that he had been so convicted. In rebuttal to this testimony, the plaintiff, without objection on the part of defendant, introduced in eyidence a certified transcript showing the conviction of the defendant in the criminal court of Fulton county, Ga., of the offense of “cheating and swindling.”

The seventh assignment of error is as follows;

“The court erred in refusing to permit tho defendant to prove that he appealed from tho judgment of conviction in the case against him in the criminal court of Atlanta, and that said case was reversed.”

The record, however, shows that tho court did not refuse to allow the defendant to make this proof; but, to tho contrary, tho recital of the record on this question is as follows:

“The defendant hero offered to prove that he appealed from the judgment of conviction against him in the criminal court of Atlanta, and that the case was reversed. The plaintiff objected to the defendant making this proof. The court overruled this objection then and there.”

It will thus be seen that, instead of the court denying the defendant the right to make this proof, it expressly held that he had the right.

[2] The eighth assignment of error is based upon the ruling of the court in sustaining plaintiff’s objection to the question asked defendant:

“I will ask you to state to this jury whether or not you ever paid one penny of tho fine mentioned in the conviction, or whether or not you ever served one day’s hard labor sentence of this conviction.”

There was no error on the part of the court In sustaining the objection to this question. It was immaterial as to whether the fine had been paid or the sentence served. The only-question at issue was as to whether there had been a conviction. The judgment of conviction was conclusive of the finding of fhe fabts necessary to support the judgment, and there was no error in refusing to allow the defendant to state that he had made no false statement.

We have examined each of the questions insisted upon by the appellant and find no error in the rulings of the court. The judgment of the circuit court is therefore affirmed.

Affirmed.