Opinion
8 Div. 973.
November 6, 1940.
Appeal from Circuit Court, Madison County; Schuyler H. Richardson, Judge.
Alton W. Adams was convicted of murder in the second degree, and he appeals.
Affirmed.
Griffin Ford, of Huntsville, for appellant.
The verdict was not sustained by the great preponderance of the evidence. Ala. Code 1928, § 9518 (6). It was error to overrule defendant's motion for a new trial on the ground of newly discovered evidence. Code, § 9518 (6), supra. The court below erred in refusing to allow defendant's attorney to qualify the venire. Ala. Code 1928, § 8662; Nix v. Andalusia, 21 Ala. App. 439, 109 So. 182; Gallman v. State, ante, p. 264, 195 So. 768.
Thomas S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.
Appellate courts will not disturb the finding of the jury on ground that the evidence is not sufficient to support the verdict unless, after allowing all reasonable presumptions, the preponderance of the evidence against the verdict is so decided as clearly to convince the court that it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Patterson v. State, 224 Ala. 531, 141 So. 195. Where alleged newly discovered evidence is merely cumulative or impeaching, and is not such as would probably change the result, a new trial will not be granted. Scruggs v. State, 224 Ala. 328, 140 So. 405; Fries v. Acme White Lead Color Wks., 201 Ala. 613, 79 So. 45; Fulwider v. Jacobs, 221 Ala. 124, 127 So. 818. It is discretionary with the trial judge to allow counsel to ask further questions of prospective jurors after the court has propounded the statutory questions. Walker v. State, 153 Ala. 31, 45 So. 640; Ballard v. State, 28 Ala. App. 346, 184 So. 259. Where objection is made as to summoning, drawing or impaneling a jury in a criminal case, such objection must appear in the record. Burton v. State, 115 Ala. 1, 22 So. 585; Kinnebrew v. State, 132 Ala. 8, 31 So. 567; Howard v. State, 160 Ala. 6, 49 So. 755; Roan v. State, 225 Ala. 428, 143 So. 454. Ex parte affidavits attached to motion for new trial are not proper method of presenting the matter for review. Matters which should appear in the record proper may not be incorporated therein by an ex parte affidavit. Prinz v. Weber, 126 Ala. 146, 28 So. 10; Union Mut. Ins. Co. v. Robinson, 216 Ala. 527, 113 So. 587. It does not appear from the record that any errors were committed on the trial which probably injuriously affected the substantial rights of appellant and, therefore, the judgment of conviction should not be set aside or a new trial granted. Supreme Court Rule 45, 4 Code 1923, p. 895.
From a judgment of conviction of murder in the second degree, defendant brings this appeal.
Upon trial, the evidence for the State was ample to support the verdict, whereas that for the defendant strongly negatived the fact of guilt of homicide in any degree. The issue was thus plainly for the determination of the jury and this court cannot sit as one of original trial and thereby supplant its findings.
With respect to the motion for a new trial, predicated upon newly discovered evidence, the authorities are uniform that in such case decision thereon largely rests within the sound discretion of the trial court. Patterson v. State, 224 Ala. 531, 141 So. 195; Brock v. Shirley, Ala.App., 197 So. 665. Such new evidence, to authorize a new trial, must be not merely impeaching or cumulative but sufficient to probably change the result. Cosby v. State, 202 Ala. 419, 80 So. 803; Collins v. State, 217 Ala. 212, 115 So. 223; Scruggs v. State, 224 Ala. 328, 140 So. 405; Welch v. State, 28 Ala. App. 273, 183 So. 879; Brock v. Shirley, Ala. App., supra. Assuming that the defendant did not offend the rule of diligence in procuring evidence for his trial, the new evidence submitted in support of his motion was only either cumulative or in impeachment of the testimony of the State's witnesses, and this court cannot say that the result would probably have been different had he the benefit of this evidence at his trial. Viewing the record in its entirety and according due consideration to the able argument of appellant's counsel, it is the opinion of this court that the trial court was justified in overruling the motion for new trial, the appellant's evidence supporting it having failed to meet the test ruled by the authorities, supra.
Ante, p. 449.
Reversal is also urged because of the asserted improper conduct of the trial judge, who, when qualifying the jurors, allegedly refused to allow the defendant to assert his rights guaranteed by Section 8662, Code 1923. Pretermitting the question of the propriety of the court's action in this regard, a review of the point cannot be here invoked because the bill of exceptions fails to show that exception was presently reserved to the stated action of the trial court. Solnick v. Ballard, 218 Ala. 206, 118 So. 381; Jones v. State, 77 Ala. 98; Birmingham Ry., Light P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543. This matter appears solely in the defendant's motion for a new trial, presumably supported by an ex parte affidavit of one present in the courtroom at the trial. We know of no rule of procedure which permits a party litigant to present an exception, which should appear in the bill of exceptions, in such manner and thereby evade the rule declared by the authorities, above, that to put the trial court in error the bill of exceptions should disclose that its ruling was appropriately invoked promptly upon the supposedly improper action.
Were the procedure adopted by appellant permitted, numerous exceptions pending trial could be manufactured and first presented (with supporting ex parte affidavits) in the motion for a new trial. Such a motion cannot be so employed. Schrimsher v. Carroll, 225 Ala. 188, 142 So. 547.
This court, after attentive consideration of the entire record, is of the opinion that affirmative and substantial error to the defendant does not appear and we so hold. Judgment is accordingly affirmed.
Affirmed.