Ballard v. State, 6 Div. 365.

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, Justice.
Citation184 So. 260,236 Ala. 541
PartiesBALLARD v. STATE.
Decision Date30 June 1938
Docket Number6 Div. 365.

184 So. 260

236 Ala. 541

BALLARD
v.
STATE.

6 Div. 365.

Supreme Court of Alabama

June 30, 1938


Rehearing Denied Oct. 6, 1938.

Certiorari to Court of Appeals.

Petition of the State of Alabama, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Grover C. Ballard v. State, 184 So. 259.

Writ awarded; reversed and remanded. [184 So. 261]

FOSTER and KNIGHT, JJ., dissenting.

A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.

F. F. Windham, of Tuscaloosa, for respondent.

GARDNER, Justice.

In Gholston v. State, 221 Ala. 556, 130 So. 69, the holding was, as to section 8662 of the Code, that it confers on the parties the right, under directions of the court, to further examine the jurors within proper bounds to ascertain "any matter that might tend to affect their verdict." But, says the opinion, "this section does not empower the party to require the court to put such questions to the jury, even when properly framed." (Page 70.) When there is no showing to the contrary, the presumption is always in favor of correct action on the part of the trial judge. Bragan v. Birmingham Railway, Light & Power Co., 163 Ala. 93, 51 So. 30. And to put the trial court in error, it should be made to appear its ruling was appropriately invoked. Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543.

It is also the well established rule that doubtful recitals must be construed most strongly against the excepter (Birmingham Railway, Light & Power Co. v. Gonzalez, supra), under the general rule that a bill of exceptions is to be construed most strongly against the party excepting. 2 Alabama Digest, page 699, Appeal and Error + 900.

Appellant has the burden of showing reversible error, and error must affirmatively appear. 2 Alabama Digest, page 701, Appeal and Error + 901.

In construing the colloquy between counsel for defendant and the trial judge, as set out in the opinion of the Court of Appeals, we are persuaded the above noted rule as to the construction of a bill of exceptions was overlooked. It is clear enough defendant's counsel made no direct request of the trial judge that he, counsel, be permitted to propound the question to the jurors as the statute prescribes, and as noted by this Court in the Gholston Case, supra. Indeed, we are inclined to think the colloquy tends...

To continue reading

Request your trial
34 practice notes
  • Travis v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 18 Abril 1997
    ...of each individual case. On appeal, this Court will indulge every presumption that the trial court ruled correctly, Ballard v. State, 236 Ala. 541, 542, 184 So. 260 (1938), and will reverse only where there has been a clear abuse of discretion. Pace v. State, 284 Ala. 585, 586, 226 So.2d 64......
  • Woods v. State, 5 Div. 393
    • United States
    • Alabama Court of Criminal Appeals
    • 24 Enero 1978
    ...jury, Bascom v. State, Ala.Cr.App., 344 So.2d 218, 222 (1977); Ballard v. State, 28 Ala.App. 346, 184 So. 259, reversed on other grounds, 236 Ala. 541, 184 So. 260 (1938), in the absence of a finding and determination by the trial judge of possible juror bias or that the mistrial is necessa......
  • Thomas v. Heard, 1150118
    • United States
    • Supreme Court of Alabama
    • 24 Marzo 2017
    ...is no showing to the contrary, the presumption is always in favor of correct action on the part of the trial judge.’ Ballard v. State, 236 Ala. 541, 542, 184 So. 260 (1938)."Thomas makes no argument in his brief before this Court concerning the trial court's finding that he was not a c......
  • Seals v. State
    • United States
    • Supreme Court of Alabama
    • 15 Agosto 1968
    ...parties to require the court to put questions to the jury touching matters which might tend to affect their verdict.--Ballard v. State, 236 Ala. 541, 184 So. 260. But we have said that it is within the discretion of the trial judge as to whether he will question the venire of jurors as to m......
  • Request a trial to view additional results
34 cases
  • Travis v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 18 Abril 1997
    ...of each individual case. On appeal, this Court will indulge every presumption that the trial court ruled correctly, Ballard v. State, 236 Ala. 541, 542, 184 So. 260 (1938), and will reverse only where there has been a clear abuse of discretion. Pace v. State, 284 Ala. 585, 586, 226 So.2d 64......
  • Woods v. State, 5 Div. 393
    • United States
    • Alabama Court of Criminal Appeals
    • 24 Enero 1978
    ...jury, Bascom v. State, Ala.Cr.App., 344 So.2d 218, 222 (1977); Ballard v. State, 28 Ala.App. 346, 184 So. 259, reversed on other grounds, 236 Ala. 541, 184 So. 260 (1938), in the absence of a finding and determination by the trial judge of possible juror bias or that the mistrial is necessa......
  • Thomas v. Heard, 1150118
    • United States
    • Supreme Court of Alabama
    • 24 Marzo 2017
    ...is no showing to the contrary, the presumption is always in favor of correct action on the part of the trial judge.’ Ballard v. State, 236 Ala. 541, 542, 184 So. 260 (1938)."Thomas makes no argument in his brief before this Court concerning the trial court's finding that he was not a c......
  • Seals v. State
    • United States
    • Supreme Court of Alabama
    • 15 Agosto 1968
    ...parties to require the court to put questions to the jury touching matters which might tend to affect their verdict.--Ballard v. State, 236 Ala. 541, 184 So. 260. But we have said that it is within the discretion of the trial judge as to whether he will question the venire of jurors as to m......
  • Request a trial to view additional results

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