Spears v. State , 26 Ala. App. 376 ( 1935 )

Appellant, tried under an indictment charging him with assault with intent to murder (Code 1923, § 3303), was convicted of the offense of assault and battery (Code 1923, § 3299).

It appears that the offense of which he was convicted was barred by the statute of limitations (Code 1923, § 4931), though the one for which he was indicted was not (Code 1923, § 4930). However "the point [i.e. that a conviction of the offense was barred by the Statute mentioned] was raised only by the general charge, which did not separate the misdemeanor from the felony, and, as there was proof authorizing the jury to convict for the felony, the trial court properly refused the general charge." Letcher v. State, 159 Ala. 59, 48 So. 805,806, 17 Ann. Cas. 716.

We have carefully examined each exception reserved on the taking of testimony, but in each instance we deem it obvious that the ruling concerned was either correct or innocuous.

The written refused charges have likewise been closely considered. No discussion of any one of same seems necessary. In each instance, if the charge asserts a correct, applicable principle of law, we find the substance of same to have been fully included in and covered by some other charge given to the jury.

We find nowhere a prejudicially erroneous ruling nor action by the court; and the judgment of conviction must be, and is, affirmed.

Affirmed.

The above was written as and for the opinion of the court. But my associates do not agree. They may be right; though I cannot see where we may do more than review rulings which appear; and none such that are erroneous are apparent. Practically, at least in substance — leaving out the matter of here and now discharging the appellant — all that is said by the PRESIDING JUDGE was said by Mr. Justice McClellan as a dissent in the Letcher Case I have cited, and upon which I rely for my views. Code 1923, § 7318. The Supreme Court would not accept it then; and, so far as I can find, its decision there remains unaltered. I therefore respectfully dissent. Code 1923, § 7318, supra.