Opinion
6 Div. 559.
December 16, 1924.
Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.
Dave Burden was convicted of robbery, and he appeals. Affirmed.
B.E. Samuels, of Birmingham, for appellant.
Where the verdict is manifestly wrong, the court will set aside judgment of the lower court and order a new trial. Grissett v. State, 18 Ala. App. 675, 94 So. 271. No presumption will be indulged in favor of the trial court's finding. Hines v. State, 198 Ala. 23, 73 So. 428; Acts 1915, p. 722. Where defendant's evidence tends to prove an alibi, a judgment of conviction will be reversed for failure to instruct thereon. Burton v. State, 107 Ala. 108, 18 So. 284.
Harwell G. Davis, Atty. Gen., and Jim Davis, Sol., and Willard Drake, Asst. Sol., both of Birmingham, for the State.
It is not shown that defendant was diligent in summoning his witnesses, and the motion for new trial on the ground of newly discovered evidence is without merit. Fries v. Acme White Lead Co., 201 Ala. 613, 79 So. 45; Grissett v. State, 18 Ala. App. 675, 94 So. 273. Counsel discuss other questions, but without citing additional authorities.
The appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for a term of 20 years. From the judgment of conviction he prosecutes this appeal.
There is obviously no merit in the exceptions to the admission of evidence.
The trial court will not be put in error for failure to instruct the jury on the defense of alibi, where charge to this effect was not requested by the defendant in writing. Section 5364, Code 1907, and authorities there cited.
It is not error to refuse a motion for a new trial on the ground of newly discovered evidence where such evidence is merely cumulative. Grissett v. State, 18 Ala. App. 675, 94 So. 271; Fries v. Acme White Lead Co., 201 Ala. 613, 79 So. 45.
The trial court will not be put in error for refusing a motion for new trial on the ground of improper argument of the solicitor, where no objection to such argument was taken on the trial, and where the bill of exceptions fails to show that the remarks complained of in the motion were made.
Appellate courts will not disturb the conclusions or findings of the trial court on motion for new trial, where the finding is based on evidence which is given ore tenus, unless it appears that such findings and conclusions are plainly and palpably contrary to the weight of the evidence. Grissett v. State, supra; Hackett v. Cash, 196 Ala. 403, 72 So. 52.
The trial court properly refused the motion for a new trial.
There is no error in the record.
The judgment of conviction is affirmed.
Affirmed.