Garrett v. State

THOMAS, J.

The trial'resulted in verdict of guilty of murder in the first degree and the sentence to life imprisonment. A dying declaration was preceded by the required predicate. Evans v. State, 209 Ala. 563 , 96 So. 923 .

Many general objections were made to the introduction of evidence that was not patently illegal or irrelevant and the failure of due motions to exclude are not sufficient to present for review the action .or ruling of the trial court. Circuit court rule 33, Code 1923, vol. 4, p. 906; Washington v. State, 106 Ala. 58 , 17 So. 546 . We have examined the record and find no reversible error. The bill of exceptions does not purport to set out all the evidence; hence the action of the court as to refusal of charges predicated thereon is not for review when the same is supported by the usual presumptions that obtain. Southern Ry. Co. v. Wyley, 200 Ala. 14 , 75 So. 326 ; Sanders v. Steen, 128 Ala. 633 , 29 So. 586 . Such a state of the evidence will be presumed as to uphold the ruling of the trial court thereon. Davis v. State, 168 Ala. 53 , 52 So. 939 ; Clardy v. Walker, 132 Ala. 264 , 31 So. 78 ; Harper v. State, 109 Ala. 28 , 19 So. 857 .

The exhortation of the prosecuting- attorney was a proper argument deducible from the evidence, and due appeal for the enforcement of the law. So, also, there was no error in the deductions or short-hand rendition of the evidence, “He cursed him,” to which exception was reserved. The evidence showed defendant was married and had children, and the general observation of prosecution’s counsel, “Gentlemen of the jury, it might be better for his children to take them and bring them up from under the baneful influence in which they are now in,” was without error. It is true the fact .that deceased was a Confederate soldier was beside the issue of fact being *225 tried, yet it is also true that the same was given in evidence without due objection, exception, and motion to exclude. And in the present state of the record as to this, we will not reverse. Lambert v. State, 208 Ala. 42 , 93 So. 708 .

We may say of the refused charges that they were either fully and fairly covered by oral charge or misleading or erroneous. The defendant is shown to have been tried without the intervention of prejudicial error.

Affirmed.

ANDERSON, C. .1., and SOMERVILLE and BOULDIN, JJ., concur.