Opinion
6 Div. 337.
January 12, 1939. Rehearing Denied February 9, 1939.
Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.
Morel Montgomery, of Birmingham, for appellant.
Inconsistencies in the testimony of the State's witnesses requires a reversal of the judgment. Gilchrist v. State, 27 Ala. App. 401, 173 So. 649. The appellate court will review the ruling denying appellant's motion for a new trial without presumptions in favor of the correctness of the trial court. Code 1923, § 6088. The motion should have been granted on ground of newly discovered evidence. Inman v. State, 22 Ala. App. 344, 115 So. 704; Middleton v. State, 22 Ala. App. 146, 113 So. 625; Brown v. State, 229 Ala. 58, 155 So. 358; Ohme v. Bisimanis, 222 Ala. 262, 132 So. 161; Fries v. Acme White Lead Color Wks., 201 Ala. 613, 79 So. 45.
A. A. Carmichael, Atty. Gen., and Edw. B. Crossland, Asst. Atty. Gen., for the State.
The evidence is sufficient to support the verdict. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Ex parte Grimmett, 228 Ala. 1, 152 So. 263. The newly discovered evidence in support of the motion for new trial is not incorporated in the bill of exceptions, and therefore nothing is presented for review. Code 1923, § 6088; Powell v. Folmar, 201 Ala. 271, 78 So. 47; Langeley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287; Jordan v. State, 225 Ala. 350, 142 So. 665.
The appellant was indicted by a grand jury, and tried and convicted of robbery, and his punishment fixed by the jury "at thirty years imprisonment in the penitentiary."
From the judgment of conviction rendered on the verdict of the jury he has appealed.
The evidence for the State is positive and without dispute as to the commission of the crime, and three of the State's witnesses positively identified the defendant as one of the persons who participated in the robbery. Ted Martin, the person alleged to have been robbed, testified that the defendant and three other negroes held him up and took from his person "three dollars and sixteen cents," and the evidence goes to show that the robbery was accomplished through putting said Martin in fear. This testimony is corroborated by the testimony of the officer who arrested appellant some hours thereafter, and found on his person three dollars and eleven cents.
The defendant offered evidence tending to prove an alibi; presenting a question for the jury. There is ample evidence to support the verdict, and the motion for new trial was properly overruled. Davis v. State, 229 Ala. 674, 159 So. 209.
The alleged newly discovered evidence, and evidence in respect thereto, was not incorporated in the bill of exceptions and therefore can not be looked to as supporting the motion on the ground of newly discovered evidence. Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287; Powell v. Folmar, 201 Ala. 271, 78 So. 47.
The record has been examined for error, and we find nothing that warrants further notice.
The proceedings of the Circuit Court showing the indictment, trial and conviction of the defendant appear regular and free from error.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.