Opinion
2 Div. 67.
December 3, 1936. Rehearing Denied January 23, 1937.
Appeal from Circuit Court, Perry County; John Miller, Judge.
J. C. Locke, of Marion, for appellant.
Over the timely objections of defendant, the solicitor was permitted to ask questions of state witness with respect to prior difficulties unconnected with and immaterial to the charge upon which defendant was being tried. The questions served to confuse the jury as to the real issue and to prejudice the jury against defendant. The motion for a mistrial was due to have been granted. Berger v. U.S., 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Moulton v. State, 199 Ala. 411, 74 So. 454; Anderson v. State, 209 Ala. 36, 95 So. 171; Windom v. State, 18 Ala. App. 430, 93 So. 79; Ex parte Windom, 208 Ala. 701, 93 So. 924; Bozeman v. State, 25 Ala. App. 281, 145 So. 165; Dredd v. State, 26 Ala. App. 594, 164 So. 309; Peterson v. State, 231 Ala. 625, 166 So. 20. For like reason the court erred in overruling the motion for a new trial. Authorities, supra.
A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The defendant cannot avail of the court's ruling on the motion to grant a mistrial; there was no exception to the court's ruling. Green v. State, 22 Ala. App. 591, 118 So. 505; Mickle v. State, 226 Ala. 616, 148 So. 319. Moreover, the trial court properly and emphatically charged the jury not to consider the illegal evidence. The ruling of the court on motion for a new trial is not reviewable, no mention thereof being made in the bill of exceptions. Code 1923, § 6088; Levene v. State, 26 Ala. App. 428, 161 So. 268; Jordan v. State, 225 Ala. 350, 142 So. 665.
The rulings of the trial court upon the introduction of the evidence and in refusing the defendant's requested charge were free from error.
As to the failure of the trial court to permit the withdrawal of the case from the jury and enter a mistrial, the bill of exceptions fails to disclose an exception to the refusal of the trial court to grant the defendant's request.
While not approving the conduct of the solicitor in a continuous effort to get before the jury the fact of an assault by the defendant on certain women and which was disconnected from the homicide, after the trial court had ruled that it was not admissible, we cannot put the trial court in error for refusing the defendant's motion for a new trial. Birmingham Baptist Hospital, Inc., v. Blackwell, 221 Ala. 225, 128 So. 389; City of Birmingham v. Williams, 231 Ala. 232, 164 So. 101.
The bill of exceptions fails to disclose the ruling of the trial court upon the motion for a new trial and an exception thereto. This fact does appear in the record proper, but it has been heretofore held that under section 6088 of the Code of 1923 this fact must be shown by the bill of exceptions. Levene v. State, 26 Ala. App. 428, 161 So. 268; Newell Contracting Co. v. Glenn, 214 Ala. 282, 107 So. 801.
The judgment of the circuit court is affirmed.
Affirmed.
All the Justices concur.