Opinion
6 Div. 950.
January 29, 1920. On Rehearing June 3, 1920.
Appeal from Circuit Court, Jefferson County; D. A. Greene, Judge.
Grace Simpson, of Birmingham, for appellant.
The court should have granted the motion to quash the venire and continue the case. Sections 7276, 7277, Code 1907; 109 Ala. 45, 19 So. 491; 110 Ala. 11, 20 So. 363; 44 Ala. 81; 48 Ala. 386; 58 Ala. 594. The court erred in permitting the opinion of the solicitor, expressed in the woods at the scene of the homicide, to go to the jury. 83 Miss. 519, 35 So. 873; 143 Ala. 603, 42 So. 73, 5 Ann. Cas. 709; 148 Ala. 675; 163 Ala. 348, 50 So. 1008; 138 Ala. 531, 36 So. 426; 195 Ala. 344, 70 So. 277.
J. Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
There is no exception reserved to the action of the court in overruling these motions, nor are the motions or exceptions recited in the bill of exceptions. 136 Ala. 625, 33 So. 872; 179 Ala. 225, 60 So. 88. There was no error in the admission of evidence. 181 Ala. 78, 61 So. 434; 13 Michie, Ala. Dig. 196.
The defendant moved the court to quash the venire and grant him a continuance of the case upon the ground that the members of the venire from which his jury was to be selected had been in court during the week and had heard the evidence and arguments in the case of Alex Hill who was tried for killing with him jointly the same person for whom he was then being placed upon trial for killing. It would have been good grounds for challenge for cause of any jurors who may have tried the said Alex Hill (Wickard v. State, 109 Ala. 45, 19 So. 491), but the fact that all or some of the members of the general venire were present in court when Alex Hill's case was tried did not afford a revisable ground for quashing the venire and refusing to continue the case. Moreover, the action of the trial court in refusing to continue the cause was discretionary. This motion was not excepted to, and was not set out in the bill of exceptions, as suggested in brief of counsel for the state; but the act of 1915, p. 598, dispenses with the necessity for an exception or setting out motions, or the ruling upon same, in the bill of exceptions. We held in the case of Powell v. Folmar, 201 Ala. 271, 78 So. 47, that the above-cited statute did not dispense with the necessity for setting up the evidence in support of a new trial, the ruling upon same, and the exception thereto in the bill of exceptions, notwithstanding the motion was in writing, for the reason that the act of 1915, p. 722, of a subsequent date specifically required that this should be done as to motions for new trials; but we did not there hold, and do not now hold, that the exceptions to the ruling upon motion in writing, or the rulings thereupon, must be shown by bill of exceptions, though we may now say it would perhaps be necessary to set out the evidence in support of same by a bill of exceptions.
The failure, however, to show an exception and the evidence in support of the motion for new trial, as well as the ruling upon same, in the case at bar by the bill of exceptions, deprives this appellant of the right to have the same reviewed by this court. Powell v. Folmar, supra.
The objections and exceptions to the rulings upon the evidence as disclosed by this record have been carefully examined, and the court is of the opinion that they were free from reversible error, and a discussion of same would involve only elementary principles, which can serve no good purpose. The judgment of the circuit court is affirmed.
Affirmed.
All the Justices concur.
On Rehearing.
Rehearing denied.
GARDNER and BROWN, JJ., dissenting.