Boutwell v. State , 31 Ala. App. 370 ( 1944 )

I agree with Judge RICE that the testimony of Mrs. Resmondo was without possible prejudice to defendant, so, if erroneously admitted, under the rule now prevailing, a reversal cannot be rested thereon. The rule of review, since the adoption of Rule 45, is not as quoted (dissent hereinabove) in the Maxwell case, supra. Now, substantial error is not presumed. It is appellant's burden to show it. And "no judgment may be reversed * * * (for) the improper admission * * * of evidence * * * unless in the opinion of the court to which the appeal is taken * * * after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." Supreme Court Rule 45, Code 1940, Title 7, Appendix, p. 1022; Bonner v. State,28 Ala. App. 406, 187 So. 643; Robinson v. State, 238 Ala. 441(5),191 So. 655.

The other proposition of law was, in my opinion, also correctly exposited by Judge RICE, so I concur in the affirmance of the judgment.