Tortomasi v. State

• Decision Date: 01 June 1939
• Docket Number: 6 Div. 520.
• Citation: 189 So. 905,238 Ala. 253
• Parties: TORTOMASI v. STATE.
• Court: Alabama Supreme Court

189 So. 905

238 Ala. 253

TORTOMASI v. STATE.

6 Div. 520.

Supreme Court of Alabama

June 1, 1939

Rehearing Denied June 29, 1939.

Certiorari to Court of Appeals.

Charlie Tortomasi was convicted of manslaughter in the first degree and appealed to the Court of Appeals. The judgment of conviction was affirmed, and defendant applies for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case styled Tortomasi v State, 189 So. 901, and, in the alternative, prays a writ of mandamus to require the Court of Appeals to give treatment to argued questions.

Writs denied.

Beddow Ray & Jones, of Birmingham, for petitioner.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

PER CURIAM.

The questions argued bye petitioner were not separately treated or discussed in the opinion of the Court of Appeals, and are not here for consideration under the limited review of this Court of the decisions of the Court of Appeals. Some of the decided cases are noted in Tennessee A. & G. R. v Cardon, 235 Ala. 53, 177 So. 173, among them Folmar v. State, 217 Ala. 410, 116 So. 112.

Among the earlier cases is Ex parte Louisville & Nashville R. R. Co., 176 Ala. 631, 58 So. 315, 317, wherein it was first observed that it was not the legislative intent the Court of Appeals "should be made merely a temporary stopping place for cases from the trial courts to this court, but that its decisions should be final and not interfered with by this court when acting within the confines of its jurisdiction," followed by some general observations of the nature of review by this Court under its constitutional power of supervision.

The case of Ex parte Steverson, 177 Ala. 384, 58 So. 992, cited by petitioner, is in harmony with this latter authority as well as others.

In the instant case the Court of Appeals has said that from a "careful study of the rulings of the court in this connection we are convinced that appellant was accorded every opportunity and legal right to which he was entitled. As a matter of fact it appears to us that the court permitted appellant an unusually wide scope of inquiry in numerous instances." The opinion refers to numerous rulings to which exceptions were reserved, but which that court considered needed no discussion. The court further observed that the "trial court ably and fully instructed the jury as to every phase of the law involved in this case. And after a thorough consideration of every question presented, we are clear to the opinion that no reversible error appears in any of the court's rulings calculated to injuriously affect or impair the substantial rights of the appellant."

All of these expressions considered together simply mean that, if any error intervened as to any rulings of the court, it was without injury to appellant. Clearly that matter could not here be reviewed without a study of the original record in the cause. And our decisions are all to one effect, that under the case as here presented, there is nothing for this Court to review. Campbell v. State, 216 Ala. 295 112 So. 902; Liberty National Life Ins. Co. v. Collier, 228 Ala. 3, 154 So. 118; Gibbs v. State, 221 Ala. 130, 127 So. 790; Baumhauer v. Liquid Carbonic Corporation, 223 Ala. 244, 135 So. 427. As observed by this court in Ex...