Green v. State

118 So. 506, 218 Ala. 363, 1928 Ala. LEXIS 260

Opinion

GARDNER, J.

The ease of Wade v. State, 207 Ala. 1, 92 So. 101 (see, also, Wade v. State, 207 Ala. 241, 92 So. 104), is not applicable to the situation here presented. That authority dealt with a constitutional right that could not be waived, and, as pointed out in White v. State, 209 Ala. 546, 96 So. 709, an-infringement of which by the order of the court affirmatively appeared upon the record.

In the instant case petitioner had the constitutional right not to be compelled to give evidence against himself, but this right could be waived by taking the stand and becoming a witness. The statement of the court in the oral charge that defendant did not deny the charge was but an indirect infringement of his constitutional right, and, to present the same -for. consideration in an appellate tribunal, we are of the opinion an exception was necessary to be reserved.

The writ is denied.

ANDERSON, C. J., 'and BOULDIN and FOSTER, JJ., concur. '