Millner v. State

43 So. 194, 150 Ala. 95, 1907 Ala. LEXIS 326

• Court: Supreme Court of Alabama
• Decided: March 2, 1907
• Status: Published

Opinion

McCLELLAN, J.

The appellant was convicted of the offense of carrying a. concealed pistol, upon the trial by the judge of the city court'without jury. His insistence is that the evidence adduced did not warrant the judgment rendered.

While it is by statute made the duty of this court to review, without favorable presumption, the conclusions and judgments of the lower court upon the evidence, this court has repeatedly declared that such conclusions and judgments, if based' upon the evidence delivered ore ten us, must be given the force and effect of a finding by a jury, and, unless plainly erroneous, will not be disturbed; the reason being that upon the record here this court is without the benefit of the presence of the witnesses and the opportunity to weigh their testimony in connection with the manner' and course of delivery thereof by them.—Woodrow v. Hawving, 105 Ala. 240, 16 South. 720; Ward v. Shirley, 131 Ala. 568, 32 South. 489; Little v. Smith, 119 Ala. 461, 24 South. 427; First Nat. Bank v. Chaffin, 118 Ala. 246, 24 South. 80. In the case at bar we cannot say that the conclusions of the judge from the evidence adduced ore tenus before him is plainly erroneous.; hence the judgment must be affirmed.

Affirmed.

Haralson, Dowdell, Anderson, and Denson, JJ., concur.