36 Ala. App. 86 - Commons v. State

How this case has been cited

Cited by 5 later decisions — most recently June 1992

5 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

CARR, Presiding Judge.

¶1On an indictment charging assault with intent to murder, the indictee was convicted of assault and battery.

¶2The general affirmative charge was not requested in defendant’s behalf; neither was there a motion for a new trial. No-*87■questions are presented for review incident to the introduction of the testimony.

¶3We have often declared that rewiew by the appellate courts is limited to those matters on which rulings at nisi prius proceedings were timely invoked. Kornegay v. State, 34 Ala.App. 274, 38 So. 2d 606; Parcus v. State, 19 Ala.App. 592, 99 So. 662.

¶4The record discloses:

¶5“During Asst. Solicitor McCall’s closing .argument he referred to the fact that before a defendant could be tried on a criminal charge witnesses had to go before a grand jury and testify and an indictment returned against the defendant.

¶6“Mr. Murphy: We object to that statement by Mr. McCall on the ground that it is incompetent, immaterial, irrelevant and illegal.

¶7“Mr. McCall: That’s the regular procedure of court.

¶8“The Court: Overruled.

¶9“Mr. Murphy: We except.”

¶10There is a legal inaccuracy in the assistant solicitor’s statement, if what he said is correctly stated. However, his assertion amounted only to an explanation of the procedure and processes preliminary to trial of criminal felonies. There is nothing in the statement that could in any manner injure the substantial rights of the accused.

¶11In the case of Sisk v. State, 22 Ala.App. 368, 115 So. 766, we refused to charge error to the solicitor’s'reference to the activity of the grand jury which returned the indictment. Clearly this statement had more possibility of harm to the defendant than the assertion in the case at bar.

¶12Written refused charge number 1 was approved by this court in . Davis v. State, 7 Ala.App. 122, 61 So. 483. On the authority of Wilson v. State, 243 Ala. 1, 8 So.2d 422, we departed from this view in Bankhead v. State, 33 Ala.App. 269, 32 So. 2d 814.

¶14The judgment below is ordered affirmed.

¶15Affirmed.