Bell v. State, 7 Div. 194.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, Justice.
• Citation: 227 Ala. 254,149 So. 687
• Parties: BELL v. STATE.
• Docket Number: 7 Div. 194.
• Decision Date: 22 June 1933

149 So. 687

227 Ala. 254

BELL
v.
STATE.

7 Div. 194.

Supreme Court of Alabama

June 22, 1933

Rehearing Denied Sept. 28, 1933.

Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.

Jack Bell was convicted of robbery, and he appeals.

Affirmed. [149 So. 688]

Albert Boutwell, of Birmingham, for appellant.

Thos. E. Knight, Jr., Atty. Gen., for the State.

THOMAS, Justice.

The indictment was for robbery, and was in the prescribed form. Sections 4527, 4547, 4556, 8682, Code. There was a verdict of guilt, and punishment by imprisonment in the penitentiary was imposed.

The objections to the genuineness of an indictment as a court record held required to be raised in the court below, before pleading to the merits, "by a timely motion to quash, or to strike the paper from the files." Section 4547, Code; Jackson v. State, 74 Ala. 26; Russell v. State, 33 Ala. 366; Davis v. State, 131 Ala. 10, 31 So. 569; Johnson v. State, 19 Ala. App. 308, 97 So. 150. It is further held, in the discharge of its duties, this court will search the record; and in so doing the record shows the indictment on which the trial was had, the endorsement thereon that it was a true bill, that it was duly presented to the court and ordered filed, and that on the trial the verdict and judgment of conviction were entered, appeal noted, and sentence suspended pending the appeal. Roan v. State, 225 Ala. 428, 143 So. 454, and authorities.

In an effort to consider the questions presented by appellant's counsel, we observe that this court has declared that a bill of exceptions will be construed against the exceptor ( Schrimsher v. Carroll, 225 Ala. 188, 142 So. 547), when susceptible of two constructions, one of which will reverse, and the other support, the judgment of the lower court; and that the "construction which will support the judgment will be adopted." Dutton v. Gibson (Ala. Sup.) 148 So. 397; German, as Executor, v. Brown & Leeper et al., 145 Ala. 364, 39 So. 742.

The application of this rule to the insistence of error as to the argument of the state's counsel does not show reversible error, [149 So. 689] in that it is indicated that the official was merely replying to the argument of defendant's counsel asking for a "lighter sentence"; and the state's counsel replies as where the same has been agreed upon on a plea of guilty. This argument was not a statement of fact by the solicitor that this defendant had attempted to plead guilty and take a lighter sentence, and that it was refused by the authorities.

The court specifically instructed that the jury would not consider that statement by the solicitor. In this action there was no reversible error.

The court having sustained the objection of the defendant to the solicitor's statement that the defendant's attorney and a woman with a little baby were out there "working up a defense," the state's counsel replied that he had the right to make such statement from the evidence. This remark was promptly excluded on motion of defendant's counsel; whereupon the state's counsel replied that he would "withdraw that statement." In this action and rulings there was no reversible error.

After the proper predicate was laid for the introduction of the confession of defendant, the state's witness was permitted to say that "Jack Bell said 'I made a great mistake when I came over there and robbed you all, you can help me and I am awfully...