Ross v. State

• Decision Date: 12 March 1918
• Docket Number: 3 Div. 303
• Parties: ROSS v. STATE.
• Court: Alabama Court of Appeals

78 So. 309

16 Ala.App. 393

ROSS v. STATE.

3 Div. 303

Court of Appeals of Alabama

March 12, 1918

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Fred Ross was convicted of robbery, and appeals. Affirmed.

Brassell & Brassell, of Montgomery, for appellant.

F. Loyd Tate, Atty. Gen., and David W.W. Fuller, Asst. Atty. Gen for the State.

BRICKEN J.

The defendant was tried and convicted of robbery, and sentenced to the penitentiary for a term of 10 years.

On this appeal it is insisted that the court erred in overruling the motion for a new trial. This question, however, is not presented for our consideration as required by law. Acts 1915, p. 722. We are therefore without authority to review the ruling of the court in refusing to grant a new trial. Under the provision of the statute, it is essential to the right to review the ruling of the trial court on a motion for a new trial that an exception should be reserved, and that this exception, together with the evidence and the ruling of the trial court on the motion, should be incorporated in the bill of exceptions. In the instant case, there is an absolute noncompliance with these provisions; hence, without reference to the merits of the motion, under these conditions the matter cannot be reviewed. Acts 1915, p. 722; King v State, 75 So. 692; Britton v. State, 74 So 721. In appellant's brief it is next insisted that the court erred in refusing the written charge numbered 4, requested by the defendant. No such designated charge is incorporated in the bill of exceptions, or set out in the record, and it naturally follows that we are unable to pass upon this question. The only charges refused to the defendant, as shown by the bill of exceptions and by the record, are charges numbered 1 and 7. Charge No. 1, being the general affirmative charge for the defendant, was under the evidence in this case properly refused, as there was ample evidence offered by the state to submit the question of the guilt or innocence of the defendant to the jury. Charge 7 was properly refused. It is not any doubt which authorizes the acquittal of a defendant, but, as has been said many times, "a reasonable doubt," and the charge is bad, therefore, for omitting the word "reasonable." The principles of law undertaken to be embodied in this charge were covered by the oral charge of the court and by given charge 3, requested by the defendant.

For the first...