Montgomery v. State · 204 Ala. 389

The opinion

GARDNER, J.

Upon the original consideration of this cause by the Court of Appeals, the judgment of conviction was reversed for error in the oral charge to the jury, the nature of which sufficiently appears in the opinion of that court. 86 South. 132 . Application . for rehearing was made by the state, and in response thereto the majority opinion of the Court of Appeals discloses that there was no exception reserved to any part of the oral charge held erroneous, and for which the judgment of conviction was reversed. But that court was of the opinion that, upon a consideration of the Acts of 1915, p. 815, in connection with section 6264 of the Code of 1907, no exception was necessary for a review of the oral charge, and express the view that the exact question here presented has never been passed upon since the passage of the act of 1915, supra.

[1]

We think the majority opinion is in error in this respect. Subsequent to the act of 1915, above referred to, the precise question was first presented to this court and decided contrary to the holding in the instant cáse in McPherson v. State, 198 Ala. 5 , 73 South. 387 , and more recently here reaffirmed in Tucker v. State, 202 Ala. 5 , 79 South. 303 ; and upon this point the McPherson Case has been cited and followed by the Court of Appeals in Ross v. State, 16 Ala. App. 393 , 78 South. 309 , and Morrissette v. State, 16 Ala. App. 32 , 75 South. 177 . The question has therefore been definitely settled by these decisions, and the Court of Appeals was in error upon this point.

[2]

A reversal, however, of the judgment of that court does not result for the reason, upon consideration of the cause on rehearing, the court found reversible error as to a question of evidence, and the law enunciated upon this particular question by the court in its opinion is not questioned'by the state. It is insisted by the state, however, that reversal should not have been rested upon this latter question as it was presented for the first time by counsel for appellant upon consideration of the application for rehearing on the part of the state. There is no merit in this insistence, as in cases of this character it is the duty of the court to carefully examine the record for the ascertainment of any reversible error, and the Court of Appeals was acting clearly within its province in passing upon this question upon application for rehearing, as much so as upon original consideration.

It results, therefore, that the writ will be denied.

Writ denied.

ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.