Oates v. State

47 So. 74, 156 Ala. 99, 1908 Ala. LEXIS 36

• Court: Supreme Court of Alabama
• Decided: June 11, 1908
• Status: Published

Opinion

ANDERSON, J.

The record fails to disclose any action by the court upon the application for a change of venue, and there is nothing for this court to review in respect to same.

The bill of exceptions does not purport to set out all the evidence, but merely sets out certain evidence permitted on the part of the state over the objection of the defendant, and certain evidence offered by defendant and to AAdiich objections by the state were sustained. The bill of exceptions does not disclose, any ground of objection to tbe evidence introduced by tbe state, and, it not being palpably illegal evidence, we cannot put the trial court in error for admitting same.

The evidence offered by tbe defendant as to former threats of tbe assaulted party against tbe defendant was admissible only when it appeared that there was a doubt as to who commenced tbe difficulty, or when it was shown that tbe assaulted party was making some hostile demonstration or overt act. Tbe bill of exceptions sets up no detains of tbe difficulty sufficient to put tbe trial court in error in excluding this evidence. It does sboAv that Johnson went to bis buggy and raised tbe cushion, but this of itself Avas not an overt act or hostile demonstration.

Tbe charge refused tbe defendant, not appearing in tbe bill of exceptions, cannot be considered by this court.

Tbe judgment of tbe circuit court is affirmed.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ„ concur.