Lewis v. State

Alabama Court of Appeals

Lewis v. State

162 So. 552, 26 Ala. App. 515, 1935 Ala. App. LEXIS 161

CourtAlabama Court of Appeals

DecidedApril 16, 1935

Docket4 Div. 83.

StatusPublished

Cited by4 cases

This text of 162 So. 552 (Lewis v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lewis v. State, 162 So. 552, 26 Ala. App. 515, 1935 Ala. App. LEXIS 161 (Ala. Ct. App. 1935).

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Opinions

RICE, Judge.

It is now too well settled to need the citation of authority that, unless an exception to the ruling is shown by the bill of exceptions, the action of the trial court in overruling a defendant’s motion for a new trial cannot be reviewed on appeal.

The above fact removes the chief ground for a reversal of the judgment of conviction in this case. It really renders *516 unnecessary any discussion of the evidence. For, although we might feel that the conviction of appellant was against the great preponderance of the testimony, still, we could not say there was not a scintilla of evidence supporting the charge against him, hence we are powerless. Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411.

Appellant’s written, requested, and refused charge 1 was properly refused because, as we have intimated, there was a scintilla of evidence going to support the charge against him. Bill Hyde v. State, 230 Ala. 243, 160 So. 237; Norwood Hospital v. Brown, supra.

Appellant’s written requested charge 5, it seems to us, should -have been given to the jury. It was based upon appellant’s testimony tending to give his version of the way, in which the deplorable occurrence for which he was convicted took place. A party is entitled to have the jury instructed as to the law governing, based upon his theory, supported by evidence, of the way in which an event happens; and this, whether the evidence supporting his theory is stronger or weaker than that supporting a contrary theory.

For the error in refusing to give to the jury appellant’s written requested charge 5, the judgment will be reversed .and the cause remanded.

Upon another trial the learned trial judge will doubtless refrain from calling the attention of the jury pointedly to the fact that deceased was a member of “our race” (meaning of course, the Caucasian), the defendant being a negro; and from complimenting (in his oral charge) the husband of deceased for not using personal violence on defendant, and appearing before the jury “willing to let the law take its course.”

The judgment is reversed, and the cause remanded.

Reversed and remanded.

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RICE, Judge.

It is now too well settled to need the citation of authority that, unless an exception to the ruling is shown by the bill of exceptions, the action of the trial court in overruling a defendant’s motion for a new trial cannot be reviewed on appeal.

The above fact removes the chief ground for a reversal of the judgment of conviction in this case. It really renders *516 unnecessary any discussion of the evidence. For, although we might feel that the conviction of appellant was against the great preponderance of the testimony, still, we could not say there was not a scintilla of evidence supporting the charge against him, hence we are powerless. Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411.

Appellant’s written, requested, and refused charge 1 was properly refused because, as we have intimated, there was a scintilla of evidence going to support the charge against him. Bill Hyde v. State, 230 Ala. 243, 160 So. 237; Norwood Hospital v. Brown, supra.

Appellant’s written requested charge 5, it seems to us, should -have been given to the jury. It was based upon appellant’s testimony tending to give his version of the way, in which the deplorable occurrence for which he was convicted took place. A party is entitled to have the jury instructed as to the law governing, based upon his theory, supported by evidence, of the way in which an event happens; and this, whether the evidence supporting his theory is stronger or weaker than that supporting a contrary theory.

For the error in refusing to give to the jury appellant’s written requested charge 5, the judgment will be reversed .and the cause remanded.

Upon another trial the learned trial judge will doubtless refrain from calling the attention of the jury pointedly to the fact that deceased was a member of “our race” (meaning of course, the Caucasian), the defendant being a negro; and from complimenting (in his oral charge) the husband of deceased for not using personal violence on defendant, and appearing before the jury “willing to let the law take its course.”

The judgment is reversed, and the cause remanded.

Reversed and remanded.

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162 So. 552, 26 Ala. App. 515, 1935 Ala. App. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-alactapp-1935.

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