Clayton v. State , 32 Ala. App. 124 ( 1945 )

On application for rehearing it is first urged in brief of counsel for appellant that the lower court erred in overruling objections to a portion of the solicitor's argument to the jury.

The record discloses: "During the argument, Mr. Borders, the State Solicitor, stated that the defendant stated that he burned the car and that if he burned it at the instance of Pratt it would be a violation of the law. Mr. Lee objected to this argument and the court overruled the objection and the defendant duly excepted."

Appellant was originally indicted under two counts of the indictment, jointly with one Pratt, the alleged owner of the automobile which was burned. At some place in the proceeding of the trial, the record does not show when, the lower court entered a nolle pros as to Count One of the indictment. It is insisted in brief here on application for rehearing that, since Count One of the indictment was nol prossed, the statement of the solicitor in question was a misstatement of the law applicable to the remaining Count Two and therefore should have been disallowed by the primary court. Assuming, but not deciding, that there is merit in this position, this court has no way of determining from the record at what time in the proceedings the court below eliminated Count One by a nolle pros. From aught appearing, both counts may have been included in the issues before the court at the time the aggrieved statement was made; in which event, clearly the allegations of Count One of the indictment and the evidence in support thereof justify the assertion by the solicitor.

It is well established by many authorities that on appeal appellant carries the burden of showing reversible error, and all doubts arising on the face of the record must be construed most strongly against the excepter. The presumption is always favorable to the rulings of the lower court, if there is nothing appearing to the contrary. Ballard v. State,236 Ala. 541, 184 So. 260; Birmingham Railway, Light Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas. 1916A, 543.

Opinion extended and application overruled.