# Holder v. State

> Alabama Court of Appeals · July 10, 1923 · 19 Ala. App. 395

URL: https://www.frixlaw.com/law-library/cases/3234693

## Case

- **Full name:** Holder v. State.
- **Court:** Alabama Court of Appeals
- **Decided:** July 10, 1923
- **Citations:** 19 Ala. App. 395; 97 So. 613; 1923 Ala. App. LEXIS 225
- **Precedential status:** Published
- **Opinion:** Dissent by Eostijr
- **Judges:** Bricken, Eostijr
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3234693

## Opinion text

EOSTIJR, J.
(dissenting).
Upon a careful reading of the record I am of the opinion that there was sufficient evidence to go to the jury on the question' of venue. Howeyer, the question is not properly presented for review. Circuit.court rule 35 reads as follows:
“Whenever the general charge is requested, predicated upon the failure of proof as to time, venue, etc., * * * the trial court will not be put in ^ error for refusing such charge, unless it appears upon appeal that the point upon which it was asked was brought to the attention of the trial court before the argument was concluded.”
It does not affirmatively appear that the question of venue was brought to the attention of the court “before the argument was concluded.” The vcourt will therefore not be put m error for refusing the affirmative charge for defendant on this ground. Ray v. State, 16 Ala. App. 497 , 79 South. 620 ; McMickens v. State, 18 Ala. App. 39 , 88 South. 342 .
The girl had been persuaded by hex sweetheart, Clifford Frazier, upon promise of marriage and statement that he had a license to. marry her, to leave her home and start out upon the journey which' resulted so disastrously to 'her. She was in company with Frazier at one time, Ed Pitts at another, Dewey Pitts at another, and Joe Holder at'* another. Sometimes two or 'three of them were with her. There was evidence sufficient to go to the jury upon- the question of conspiracy of all of these parties to debauch the girl, and evidence of the acts of one conspirator in the furtherance of a common unlawful enterprise is admissible against all. The details of the girl’s trip, from the time she left her home on Sunday afternoon until ■ her rescue on AVednesday, relating to the acts of any one of the alleged conspirators, was relevant against all. 1 Mayfield’s Digest, p. 6, § 6; Pierson v. State, 99 Ala. 148 , 13 South. 550 . A conspiracy may and often can only be proven by circumstances, and actions. Marler v. State, 68 Ala. 580 . Conspiracy vel non is a jury question, and a wide latitude is allowed in proving it. Morris v. State, 17 Ala. App. 126 , 82 South. 574 .
I am of the opinion that application for rehearing should be granted and that the judgment of the circuit court should be af-' firmed. I respectfully dissent from the views expressed by the majority of the court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3234693. Public record. Not legal advice.