Tolen v. State

Alabama Court of Appeals

Tolen v. State

93 So. 278, 18 Ala. App. 523, 1922 Ala. App. LEXIS 190

CourtAlabama Court of Appeals

DecidedMay 16, 1922

Docket8 Div. 867.

StatusPublished

Cited by1 cases

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Bluebook

Tolen v. State, 93 So. 278, 18 Ala. App. 523, 1922 Ala. App. LEXIS 190 (Ala. Ct. App. 1922).

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Opinion

BRICKEN, P. J.

The prosecution against this appellant was commenced in the county court, and from a judgment of conviction in that' court he appealed to the circuit court, and was there tried upon a complaint filed by the solicitor, as provided in section 6730 of the Code of 1907.

Tho judgment entry recites that demurrers were filed to the complaint and that they were overruled. No demurrers are set out in the record, we are therefore unable to consider “point 1,” contained in the brief and argument of appellant’s counsel. However, the complaint filed by the solicitor was predicated" upon the original complaint in the county court, and as it appears in the record meets every requirement of the statute.

The main insistence of error is predicated upon the court’s rulings on the testimony. It would serve no good purpose* to deal specifically with each of these rulings. Every ruling upon the testimony has been examined, and we find them free from error. What happened at the time of the actual search by the officers between them and the witness Mrs. Jim Tolen was of the res gestas, and the court committed no error in this connection. Moreover, some of this testimony was relevant, also, in order to show bias upon the part of this witness. The alleged conversation between the defendant and the officers prior to making the 'search was brought out by defendant on cross-examination of the state’s witnesses, and the exceptions reserved to the court’s rulings as to portions of this testimony are without merit; it being apparent that the questions called for testimony of a self-serving nature. ■ ■

The testimony was in conflict. There was ample evidence upon which to predicate the verdict rendered: therefore charges 1, and A, which were the affirmative charges, were properly refused. ,

'Charges B and C had misleading tendencies. They were objectionable, also, in that they singled out a part of the evidence upon which the jury should predicate its verdict. It is elementary that it is the duty of the jury to consider all the evidence adduced upon the trial in their deliberations in reaching a verdict.

No ruling of the court being erroneous, and no error apparent on the record, the judgment of the circuit court appealed from is affirmed.

Affirmed.

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BRICKEN, P. J.

The prosecution against this appellant was commenced in the county court, and from a judgment of conviction in that' court he appealed to the circuit court, and was there tried upon a complaint filed by the solicitor, as provided in section 6730 of the Code of 1907.

Tho judgment entry recites that demurrers were filed to the complaint and that they were overruled. No demurrers are set out in the record, we are therefore unable to consider “point 1,” contained in the brief and argument of appellant’s counsel. However, the complaint filed by the solicitor was predicated" upon the original complaint in the county court, and as it appears in the record meets every requirement of the statute.

The main insistence of error is predicated upon the court’s rulings on the testimony. It would serve no good purpose* to deal specifically with each of these rulings. Every ruling upon the testimony has been examined, and we find them free from error. What happened at the time of the actual search by the officers between them and the witness Mrs. Jim Tolen was of the res gestas, and the court committed no error in this connection. Moreover, some of this testimony was relevant, also, in order to show bias upon the part of this witness. The alleged conversation between the defendant and the officers prior to making the 'search was brought out by defendant on cross-examination of the state’s witnesses, and the exceptions reserved to the court’s rulings as to portions of this testimony are without merit; it being apparent that the questions called for testimony of a self-serving nature. ■ ■

The testimony was in conflict. There was ample evidence upon which to predicate the verdict rendered: therefore charges 1, and A, which were the affirmative charges, were properly refused. ,

'Charges B and C had misleading tendencies. They were objectionable, also, in that they singled out a part of the evidence upon which the jury should predicate its verdict. It is elementary that it is the duty of the jury to consider all the evidence adduced upon the trial in their deliberations in reaching a verdict.

No ruling of the court being erroneous, and no error apparent on the record, the judgment of the circuit court appealed from is affirmed.

Affirmed.

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93 So. 278, 18 Ala. App. 523, 1922 Ala. App. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tolen-v-state-alactapp-1922.

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