Boyett v. State

• Decision Date: 15 February 1921
• Docket Number: 4 Div. 666.
• Parties: BOYETT v. STATE.
• Court: Alabama Court of Appeals

92 So. 515

18 Ala.App. 363

BOYETT v. STATE.

4 Div. 666.

Court of Appeals of Alabama

February 15, 1921

Rehearing Denied Jan. 17, 1922.

Appeal from Circuit Court, Covington County; A. B. Foster, Judge.

Bud Boyett was convicted of manslaughter, and he appeals. Affirmed.

A Whaley, of Andalusia, for appellant.

J. Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

This defendant, a white boy who had just passed his sixteenth birthday, was indicted for murder in the first degree; he was tried and convicted for the offense of manslaughter in the first degree, and appeals.

No exceptions were reserved to the oral charge of the court, and the court gave at the instance of the defendant all of the special written charges requested.

The only exceptions reserved to the rulings of the court relate to the testimony. After witness, W. R. Scarbrough, had identified the empty shell which he had taken from the gun of the deceased, and the two empty shells which witness himself had fired from the gun of defendant. The solicitor offered these empty shells in evidence, defendant objected the court overruled the objection, and defendant excepted. In this ruling there was no error. Crawford v. State, 112 Ala. 1, 21 So. 214; Hardley v. State, 202 Ala. 24 79 So. 362; Lundy v. State (Ala. App.) 85 So. 819; James v. State (Ala. App.) 86 So. 131. It was undisputed that deceased came to his death by a gunshot wound, and we are unable to see how this testimony could in any manner prejudice the substantial rights of the defendant. Hodge v. State, 97 Ala. 37, 12 So. 164, 38 Am. St. Rep. 145.

The next exception was to the action of the court in overruling defendant's motion to exclude the testimony of state witness Preston Merritt, who had been allowed to testify, without objection, that "he was at a tobacco barn last year, when defendant and deceased had a fuss, and that defendant had a knife." There was no error in this ruling, the rule is that objections to evidence should be addressed to the question, as the objecting party is not allowed to speculate upon the answer of witness. While the bill of exceptions does not contain the questions propounded to this witness, it must be presumed that they were so propounded, and the witness allowed to answer without objection, as error will not be presumed, and the duty rests upon appellant to affirmatively show error. The objection therefore came too late, and the court's ruling was free from error.

What has been said in connection with the court's ruling upon the motion to exclude the testimony of witness Preston Merritt applies also to the motion to exclude the testimony of witness W. J. Hathorne, for even if this testimony had been objectionable, the objection interposed came too late, and the court committed no error in overruling same.

The last and only other insistence made in behalf of appellant is that the argument of the solicitor was not only improper, but was highly prejudicial. This question is not presented for review, as no motion was made to exclude the objectionable argument, and the court ruled with the defendant by sustaining the defendant's two objections to this argument. The only rulings of the court in this connection which were invoked being favorable to the defendant, there is nothing presented of which the defendant can complain.

We have dealt with every question presented in the line and scope of our duty and authority which is revisory only, and we find no error in any of the rulings of the court complained of, and, as the record also is free from error, we are without authority to do other than order an affirmance of the judgment of conviction appealed from.

This court, however, is unanimous in the opinion that this case presents a matter for executive clemency. A careful consideration of all the evidence as shown by the bill of...