Espey v. State

12 Citing cases

  1. Cosby v. State

    114 So. 2d 250 (Ala. 1959)   Cited 22 times

    We cannot say, therefore, that the argument was so erroneous as to require a reversal. Mincy v. State, 262 Ala. 193, 78 So.2d 262; Pate v. State, 32 Ala. App. 365, 26 So.2d 214; Espey v. State, 31 Ala. App. 351, 17 So.2d 430. Defendant also argues that the verdict is contrary to the great weight of the evidence.

  2. Payne v. State

    261 Ala. 397 (Ala. 1954)   Cited 51 times
    In Payne v. State, 261 Ala. 397, 74 So.2d 630, 639, we said: "The proper hypothesis for a requested charge in a criminal prosecution is rested on belief from the evidence.

    We are of the opinion that charge 25 was wholly abstract and that it was refused without error. Espey v. State, 31 Ala. App. 351, 17 So.2d 430. Defendant's charge 26, on the right of defendant to act in defense of his son, was fully covered by the general charge and its refusal was not prejudicial error. § 273, Title 7, Code 1940; Locklayer v. State, 209 Ala. 605, 96 So. 759.

  3. Westfaul v. State

    323 So. 2d 404 (Ala. Crim. App. 1975)   Cited 4 times

    Variance between the correct name of an accused or victim as stated in an indictment and as stated in evidence at trial is not a "fatal variance" unless more than slight and does not entitle the accused to requested affirmative charge. Jones v. State, 241 Ala. 337, 2 So.2d 422; Comer v. State, 28 Ala. App. 470, 188 So. 691; Page v. State, 61 Ala. 16; Underwood v. State, 72 Ala. 220; Espey v. State, 31 Ala. App. 351, 17 So.2d 430; Ward v. State, 28 Ala. 53, 60; McCoy v. State, 232 Ala. 104, 166 So. 769. TYSON, Judge.

  4. Taylor v. State

    214 So. 2d 703 (Ala. Crim. App. 1968)   Cited 1 times

    In the case at bar, the question of idem sonans did not arise on demurrer to a plea of misnomer but arose during the cross-examination of the witness whose name is in question by the defense counsel's moving to exclude the evidence. Espey v. State, 31 Ala. App. 351, 17 So.2d 430, spoke on this point when the court, speaking through Simpson, J., stated in part: "Whether one name is idem sonans with another, notwithstanding a difference in the spelling of the two, is a question of fact for the determination of the jury, when it arises on the evidence under the plea of the general issue, and not a matter of law for the decision of the court.

  5. Cranmore v. State

    41 Ala. App. 276 (Ala. Crim. App. 1961)   Cited 19 times

    Refusal to continue criminal case is not reversible error in absence of showing of gross abuse of discretion. Chiles v. State, 26 Ala. App. 358, 159 So. 700; 6 Ala.Dig., Criminal Law, 586. The acts, declarations and demeanor of an accused, before or after the offense, whether a part of the res gestae or not, are admissible against him, but unless they are a part of the res gestae they are not admissible for him. Johnson v. State, 265 Ala. 360, 365, 91 So.2d 476; Willingham v. State, 261 Ala. 454, 74 So.2d 241; Kennedy v. State, 39 Ala. App. 676, 107 So.2d 913. Counsel for state and defendant are allowed considerable latitude in drawing their deductions from evidence, and propriety of argument of counsel depends upon particular issues, facts and atmosphere of case. Cosby v. State, 269 Ala. 501, 114 So.2d 250; Mincy v. State, 262 Ala. 193, 78 So.2d 262; Pate v. State, 32 Ala. App. 365, 26 So.2d 214; Espey v. State, 31 Ala. App. 351, 17 So.2d 430. PRICE, Judge.

  6. Cooper v. State

    112 So. 2d 804 (Ala. Crim. App. 1959)

    In order for the appellate court to pass intelligently upon question of propriety of solicitor's alleged remarks as to accused's failure to testify, enough of the remarks must be incorporated in the record to inform the court as to what was actually said, mere statements of opposing counsel being insufficient. Johnson v. State, 35 Ala. App. 645, 51 So.2d 901; Robinson v. State, 37 Ala. App. 403, 71 So.2d 843; Id., 260 Ala. 700, 71 So.2d 846; Autry v. State, 34 Ala. App. 225, 38 So.2d 348; Pate v. State, 32 Ala. App. 365, 26 So.2d 214; Warren v. State, 32 Ala. App. 302, 25 So.2d 695; Id., 247 Ala. 595, 25 So.2d 698; Espey v. State, 31 Ala. App. 351, 17 So.2d 430. CATES, Judge.

  7. Golden v. State

    39 Ala. App. 361 (Ala. Crim. App. 1958)   Cited 30 times
    In Golden v. State, 39 Ala. App. 361, 103 So.2d 52 we held a waiver of the right to a sequestered jury in a non-capital trial was without any presumption of continuous efficacy.

    Before an objection because of false grammar or mere clerical error within an indictment is entertained, the court should be satisfied of a tendency of the error to mislead, or a tendency to leave a doubt in the mind of a person of common understanding as to its meaning and what is intended to be charged. Grant v. State, 55 Ala. 201; Frazer v. State, 29 Ala. App. 204, 195 So. 287; Griffith v. State, 90 Ala. 583, 8 So. 812; Espey v. State, 31 Ala. App. 351, 17 So.2d 430. Evidence of threats and prior difficulties is admissible under an indictment charging manslaughter in the first degree. Finch v. State, 81 Ala. 41, 1 So. 565.

  8. Oates v. State

    79 So. 2d 61 (Ala. Crim. App. 1955)   Cited 4 times

    * * * The motion to exclude the evidence, and the instruction requested, were but efforts to withdraw the inquiry from the consideration of the jury and were properly overruled." See also Espey v. State, 31 Ala. App. 351, 17 So.2d 430; Levert v. State, 34 Ala. App. 523, 42 So.2d 525; Huddleston v. State, 37 Ala. App. 57, 64 So.2d 90. On the question of a variance here there was no error in the court's action in overruling the motion to exclude the evidence, refusing the request for the general affirmative charge nor in denying the motion for a new trial.

  9. Huddleston v. State

    64 So. 2d 90 (Ala. Crim. App. 1953)   Cited 37 times

    The question of a variance between the name set out in the indictment and that shown by the proof is first presented by the request for the general affirmative charge. The holding of this court in the case of Espey v. State, 31 Ala. App. 351, 17 So.2d 430, 431, is here applicable: "Moreover, under the rule of idem sonans, declared in Underwood v. State, 72 Ala. 220, 222, the trial court must be sustained in the ruling.

  10. Levert v. State

    42 So. 2d 525 (Ala. Crim. App. 1949)   Cited 4 times

    In addition, whether one name is idem sonans with another, notwithstanding a difference in the spelling of the two, is a question of fact for the jury when it arises on the evidence under a plea of the general issue, and not a matter of law for the court. Frazer v. State, 29 Ala. App. 204, 195 So. 287; Espey v. State, 31 Ala. App. 351, 17 So.2d 430; McCoy v. State, 232 Ala. 104, 166 So. 769. Mr. T.J. McCollum, deputy coroner of Jefferson County, testified that he had been deputy coroner for about sixteen years, was a licensed embalmer, and had been an undertaker for forty years.