Wilburn v. State
| Decision Date | 22 January 1963 |
| Docket Number | 5 Div. 617 |
| Citation | 41 Ala.App. 681,149 So.2d 296 |
| Parties | Louis WILBURN v. STATE. |
| Court | Alabama Court of Appeals |
Tom Radney, Alexander City, for appellant.
MacDonald Gallion, Atty. Gen., Bernard F. Sykes, Asst. Atty. Gen., and Roy E. Hicks, Legal Research Aide, for the State.
Appellant was indicted jointly with one James McCarty, on a charge of assault with intent to murder. Appellant demanded and was granted a severance. His jury trial resulted in a conviction of the lesser included offense of an assault and battery and the imposition of a $500 fine.
To delineate the evidence would serve no useful purpose, since its sufficiency to sustain the charge of assault and battery is in no wise presented. The motion to exclude the state's evidence and the requested affirmative charge were referred to the charge of assault with intent to murder, which was eliminated by the jury's verdict. The motion for a new trial was not presented to the trial judge within thirty days from the date of judgment.
Counsel insists in brief that certain remarks of the solicitor in cross-examining the defendant require a reversal of the cause.
Defendant was chief of police of Carrville, Alabama. The solicitor asked him on cross-examination:
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In both of said instances defense counsel moved for a mistrial on account of the solicitor's remarks. As to the first remark complained of the court observed:
The solicitor stated:
'I beg the court's pardon.'
As to the second remark complained of the following occurred:
Defense Counsel:
It is argued that although the court reprimanded the solicitor it did not admonish the jury in respect to such remarks and for this reason there was error in the denial of the motions for mistrial.
There was no motion that the remarks be excluded from the jury's consideration. The court is not required ex mero motu to exclude improper argument of the solicitor. Chambers v. State, 17 Ala.App. 178, 84 So. 638; Washington...
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Chatom v. State
...request for a mistrial. He has no adverse ruling from which to appeal. The action of the trial court is not error. Wilburn v. State, 41 Ala.App. 681, 149 So.2d 296 (1963); Elliott v. State, 19 Ala.App. 263, 97 So. 115 (1923). In view of the action of the trial judge, we need not determine w......
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Harris v. State
...admonishing the jury where there was no motion made that the remarks be excluded from the jury's consideration. Wilburn v. State, 41 Ala.App. 681, 149 So.2d 296 (1963). A motion for mistrial does not include either a motion to strike or exclude as a lesser prayer for relief. Van Antwerp v. ......
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Smith v. State, 4 Div. 43
...reach because defense counsel did not timely object to the Solicitor's remarks. The trial judge had no occasion to rule. Wilburn v. State, 41 Ala.App. 681, 149 So.2d 296. Ordinarily a point of this sort is too late if first raised on a motion for new The judgment below is Affirmed. ...