Dowling v. State

• Citation: 44 So. 403,151 Ala. 131
• Parties: DOWLING v. STATE.
• Decision Date: 13 June 1907
• Court: Supreme Court of Alabama

44 So. 403

151 Ala. 131

DOWLING v. STATE.

Supreme Court of Alabama

June 13, 1907

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Eugene Dowling was convicted of rape, and appeals. Affirmed.

L. A Sanderson and George H. Shreve, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN J.

The appellant was convicted of rape. Outside of the error sought to be predicated upon the refusal to give, for the defendant the general affirmative charge, all the exceptions attempting to bring up for review the action of the trial court relate to the admissibility of testimony. A majority of these are founded on no ruling of the court, invoked by appropriate objection or motion to exclude. Merely objecting to a question propounded to a witness, or a motion to exclude testimony already admitted, is not enough to, on appeal present any reviewable matter. It must appear by the bill of exceptions that a ruling of the court was had on the proposition presented by the objection or motion, and that action of the court thereon was had and excepted to. The act of the court, not the act of the parties in invoking it though necessary thereunto, is the matter reviewable on appeal. Thomas v. State, 43 So. 377.

The practice, several times pursued in this case, seems to have been to object, not to questions propounded, but to testimony already before the jury, and to move to exclude it, and then except to the court's refusal to do so. This practice has been often condemned by this court. It has all the elements of a speculation upon what a witness will say, seeking, if unfavorable, to eliminate the answer, and, if favorable, availing himself of it. Coppin v. State, 123 Ala. 58, 26 So. 333, and authorities there cited; Franklin's Case (Ala.) 39 So. 979.

Furthermore, the bill of exceptions is in several instances ambiguous, and hence demands the application of the rule declared in Dickens' Case, 142 Ala. 51, 39 So. 14, 110 Am. St. Rep. 17, thus: "A bill of exceptions is construed most strongly against the party excepting, and, if it will admit of two constructions, one of which will reverse and the other support the judgment, the latter construction will be adopted." There was testimony in the cause tending to establish defendant's guilt of the offense charged; hence the affirmative charge was well refused.

We find no reversible error in the record, and the judgment appealed from will be...