Smith v. State , 46 Ala. App. 99 ( 1970 )

CATES, Judge.

Murder in the first degree; life imprisonment.

The testimony was much like that at the first trial. See 282 Ala. 268, 210 So.2d 826.

However, the four statements which Smith gave Gatlin (282 Ala., pp. 278-280 and 283, 210 So.2d 826) did not come into evidence on this second trial. This is true also of his statements to which Dr. Shoffeit, Sheriff Davis and Jailer Kelly testified, 282 Ala., pp. 280-282, 210 So.2d 826.

The State put one Arthur Mayr on the stand. This witness testified that he saw Smith on the Thursday night of December 12, 1963 at about 8:30 near Mrs. Boone’s house, i. e., cater-cornered from it.

We have reviewed the entire record and consider that the State adduced sufficient proof which, if believed to the required degree, was enough to uphold the petty jury’s verdict.

Complaint is made as to the Deputy Solicitor breaching Code 1940, T. 15, § 305 in final argument. This point we do not reach because defense counsel did not timely object to the Solicitor’s remarks. The trial judge had no occasion to rule. Wilburn v. State, 41 Ala.App. 681, 149 So. 2d 296.

Ordinarily a point of this sort is too late if first raised on a motion for new trial.

The judgment below is

Affirmed.