Hyatt v. State

Full title: HYATT v. STATE

Court: Court of Appeals of Alabama

Date published: Aug 4, 1931

136 So. 276 (Ala. Crim. App. 1931)

136 So. 276

Opinion

4 Div. 786.

June 30, 1931. Rehearing Denied August 4, 1931.

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Frank Hyatt was convicted of murder in the second degree, and he appeals.

Affirmed.

Thos. E. Knight, Jr., Atty. Gen., for the State.

Brief did not reach the Reporter.

SAMFORD, J.

The written charges requested by the defendant and refused by the court cannot be considered on this appeal, for the reason that the record discloses that there were written charges given at the request of the defendant and read to the jury which do not appear in this record. The oral charge of the court discloses a careful and painstaking exposition of the law of the case, and substantially covers the principles of law embraced in the refused charges, but, if it did not, we would presume that those written charges given at defendant's request and not in the record justified the court in its refusal of the charges marked "Refused." Long v. State, 23 Ala. App. 107, 121 So. 453.

When the cause was called for trial the defendant moved for a continuance, which motion was overruled. On showing on this motion as appears in the bill of exceptions, we hold that there is no reason to interfere with the discretion of the trial court in ordering the trial to proceed.

We have examined the several exceptions reserved to the rulings of the court on the admission of testimony and find in them no prejudicial error.

The indictment did not contain the proper indorsements at the time of trial. The defendant moved to quash the indictment on that ground. The court proceeded to inquire from the clerk the facts concerning the return of the indictment, and, upon evidence that the indictment had been regularly indorsed and filed as required by law, ordered the indorsements placed on the indictment and overruled the motion. This action was free from error. The indictment was returned at the then term of the court, and was in its control to correct omissions in the indorsements.

We find no error in the record, and the judgment is affirmed.

Affirmed.