Opinion
4 Div. 603.
January 14, 1941.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
Dell Braswell was convicted of buying, receiving, or concealing stolen property, and he appeals.
Affirmed.
The following charge was refused to defendant: "10. If there is a probability of defendant's innocence arising out of the evidence, you should acquit him."
Chauncey Sparks, of Eufaula, for appellant.
Defendant's requested charge 10 is a correct statement of law. It is included in the record as required by law and becomes a part thereof. Its refusal was reversible error. Mitchell v. State, 28 Ala. App. 119, 180 So. 119; Arrington v. State, 24 Ala. App. 233, 133 So. 592; Jones v. State, 16 Ala. App. 7, 74 So. 843.
Thos. S. Lawson, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen., for the State.
As there is no bill of exceptions, the appellate court will presume any state of evidence to sustain the trial court in refusing the requested charge by defendant. Wright v. Bessemer, 209 Ala. 374, 96 So. 316; Lamar v. King, 168 Ala. 285, 53 So. 279.
The appeal is from a judgment of conviction of buying, receiving, concealing or aiding in concealing stolen property, etc. Code 1923, Section 4012. There is no bill of exceptions, the appeal being predicated upon the record proper alone. The sole insistence of error is the refusal of the trial court to give for the defendant a certain written charge, duly requested. Action of the court in refusing such charge is not reviewable without a bill of exceptions. Hewett v. State, 231 Ala. 524, 165 So. 772; Abrams v. State, 236 Ala. 41, 180 So. 774; Brooks v. State, Ala.App., 193 So. 325;[1] Griffin v. State, 28 Ala. App. 581, 190 So. 289; Davidson v. State, 26 Ala. App. 164, 155 So. 315; 7 Alabama Digest, Criminal Law, 1090 (14).
This court, therefore, being without authority to consider said insistence and the record proper being regular in all respects, the judgment must be affirmed.
Affirmed.