114 So. 14 (Ala.App. 1927), 6 Div. 265, Anderson v. State

Docket Nº6 Div. 265
Citation114 So. 14, 22 Ala.App. 193
Opinion JudgeBRICKEN, P.J.
Party NameANDERSON v. STATE.
Attorney[22 Ala.App. 194] R.G. Redden, of Vernon, for appellant. Charlie C. McCall, Atty. Gen., for the State.
Case DateOctober 04, 1927
CourtAlabama Court of Appeals

Page 14

114 So. 14 (Ala.App. 1927)

22 Ala.App. 193

ANDERSON

v.

STATE.

6 Div. 265

Court of Appeals of Alabama

October 4, 1927

Appeal from Circuit Court, Lamar County; R.L. Blanton, Judge.

Bob, alias Robert, Anderson, was convicted of assault and battery, and he appeals. Reversed and remanded.

[22 Ala.App. 194] R.G. Redden, of Vernon, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN, P.J.

The indictment charged assault with intent to ravish. Trial was had thereon which resulted in the conviction of the accused (appellant) for the offense of assault and battery; the jury assessed a fine of $200, to which the court added 6 months' hard labor. This appeal was taken from the judgment pronounced and entered.

Appellant has assigned errors. We note that these assignments present the salient points of decision involved upon this appeal.

This trial was had upon a felony charge, and in cases of this character the rules of evidence permit the prosecution to show a complaint by prosecutrix. This question is fully discussed in the case of Gaines v. State, 167 Ala. 70, 52 So. 643, and cases cited. Assignment of error No. 1, therefore cannot be sustained.

Assignment of error No. 2 is of the same purport, and what has been said above is applicable here also. It was immaterial as to whether or not the prosecutrix was two months pregnant and that "she had been out of the hospital five weeks," and that "she was weak." These matters could shed no light upon the sole issue of fact as to whether or not the alleged assault was committed by defendant. This was the only issue involved upon this trial.

The matters complained of in the third assignment of error were brought out by the defendant by the insistent cross-examination of the alleged injured party. He was therefore in no position to complain, and the court properly so held.

Assignment No. 4 deals with the alleged objectionable argument of the solicitor. These questions are not presented as no motion to exclude was made. The mere objection and exception is not sufficient. Lambert v. State, 208 Ala. 42, 93 So. 708. There the Supreme Court said:

"The effect of our decisions is that a mere objection to already spoken words does not reach the evil aimed at, and that the court must be appealed to to exclude them from the consideration of the jury, failing which there is nothing presented *** by an exception."

The statute, Code 1923, § 3258, makes...

To continue reading

Request your trial
3 practice notes
  • 113 So. 452 (Ala.App. 1927), 4 Div. 142, Martin v. State
    • United States
    • Alabama Court of Appeals
    • October 4, 1927
    ...the only right Martin had left was, under Supreme Court rule 38, to apply for rehearing within 15 days from the rendition of judgment. [22 Ala.App. 193] The call for the special term for August 1st was specific and related only to the "determination of certain preferred causes remainin......
  • 19 So.2d 604 (Ala.App. 1944), 8 Div. 381, Ex parte City of Russellville
    • United States
    • Alabama Court of Appeals
    • November 7, 1944
    ...motion is now pending in the Court of Appeals. "In connection with the question involved I call your attention to Ex parte Tillery, 22 Ala.App. 193, 114 So. "The Judges of the Court of Appeals being unable to reach an unanimous conclusion on the merits of the motion, under authori......
  • 19 So.2d 601 (Ala. 1944), 8 Div. 381, Ex parte City of Russellville
    • United States
    • Supreme Court of Alabama
    • November 1, 1944
    ...This motion is now pending in the Court of Appeals. In connection with the question involved I call your attention to Ex parte Tillery, 22 Ala.App. 193, 114 So. [246 Ala. 131] The Judges of the Court of Appeals being unable to reach an unanimous conclusion on the merits of the motion, under......
3 cases
  • 113 So. 452 (Ala.App. 1927), 4 Div. 142, Martin v. State
    • United States
    • Alabama Court of Appeals
    • October 4, 1927
    ...the only right Martin had left was, under Supreme Court rule 38, to apply for rehearing within 15 days from the rendition of judgment. [22 Ala.App. 193] The call for the special term for August 1st was specific and related only to the "determination of certain preferred causes remainin......
  • 19 So.2d 604 (Ala.App. 1944), 8 Div. 381, Ex parte City of Russellville
    • United States
    • Alabama Court of Appeals
    • November 7, 1944
    ...motion is now pending in the Court of Appeals. "In connection with the question involved I call your attention to Ex parte Tillery, 22 Ala.App. 193, 114 So. "The Judges of the Court of Appeals being unable to reach an unanimous conclusion on the merits of the motion, under authori......
  • 19 So.2d 601 (Ala. 1944), 8 Div. 381, Ex parte City of Russellville
    • United States
    • Supreme Court of Alabama
    • November 1, 1944
    ...This motion is now pending in the Court of Appeals. In connection with the question involved I call your attention to Ex parte Tillery, 22 Ala.App. 193, 114 So. [246 Ala. 131] The Judges of the Court of Appeals being unable to reach an unanimous conclusion on the merits of the motion, under......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT