Gilbert v. State
| Decision Date | 21 December 1911 |
| Citation | 2 Ala.App. 94,57 So. 127 |
| Parties | GILBERT v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Criminal Court, Jefferson County; William E. Fort, Judge.
Sam Gilbert was convicted of an offense, and he appeals. Affirmed.
R. C. Brickell, Atty. Gen., and William L. Martin, Asst. Atty. Gen., for the State.
The trial court's action in overruling the defendant's motion for a continuance on account of absent witnesses was a matter resting in the sound discretion of the court. No abuse is shown of the discretion, and therefore no error was committed in denying the motion. House v. State, 139 Ala. 132, 135, 36 So. 732; Terry v. State, 120 Ala. 287, 292, 25 So. 176; Walker v. State, 117 Ala. 85, 87, 23 So. 670; Carr v. State, 104 Ala. 4, 14, 16 So. 150; Lowery v. State, 98 Ala. 45, 50, 13 So. 498; Walker v. State, 91 Ala. 76, 79, 9 So. 87; White v. State, 86 Ala. 69, 74, 5 So. 674; De Arman v. State, 77 Ala. 10, 15; Starr v. State, 25 Ala. 49, 51.
The charges set out as requested by the defendant and refused are not shown to have been requested in writing, nor to have been separately requested. Immediately preceding the charges as they appear set out in the bill of exceptions is the following statement: "The defendant requested the following charges, which were refused." The bill of exceptions further shows that each of the charges was indorsed "refused" by the trial judge, and that an exception was reserved to the action of the court in refusing each of such charges; but it nowhere appears that the charges were separately requested, or that they were requested in writing, and it is necessary, to present the action of the trial court in refusing special charges requested for review by this court, to show affirmatively by the record that the charges requested were in writing. Henderson v. State, 137 Ala. 83, 34 So. 828; Foxworth v. Brown, 114 Ala. 299, 21 So. 413; Bellinger v. State, 92 Ala. 86, 9 So. 399; Walker v. State, 91 Ala. 76, 9 So. 87; Ricketts v. B. S. Ry. Co., 85 Ala. 600, 5 So. 353; Wheless v. Rhodes, 70 Ala. 419; Crosby v. Hutchinson, 53 Ala. 5.
The record contains no error, and the case will be affirmed.
Affirmed.
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Harris v. State, 8 Div. 582
...requested for review by this court, to show affirmatively by the record that the charges requested were in writing." Gilbert v. State, 2 Ala.App. 94, 96, 57 So. 127 (1911); Alabama Code 1975, Section The refusal to instruct on lesser included offenses was not error for a second reason. The ......
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