Opinion
6 Div. 512.
October 15, 1925.
R. M. Montgomery, of Birmingham, for appellant.
Where a charge states a correct principle of law applicable to the case, regardless of evidence or lack of it, the rule that in the absence of a recital that the bill of exceptions contains all the evidence refused charges will not be considered does not apply. Anniston Mfg. Co. v. Sou. R. Co., 145 Ala. 351, 40 So. 965.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
We think the statement in the opinion of the Court of Appeals that refused charges requested in writing by defendant cannot be reviewed, where the bill of exceptions fails to disclose that it contains all the evidence, is too broad and needs some qualification. There may be refused charges which should properly be reviewed, though all the evidence does not appear, such as charges in no manner affected by that fact. Anniston Mfg. Co. v. Southern Ry. Co., 145 Ala. 351, 40 So. 965.
But the petition and brief in this cause do not point out that any refused charges in the instant case come within that class, and none of the charges are here discussed. Supreme Court rule 44, vol. 4, Code 1923. Under these circumstances we assume, in favor of the ruling of the Court of Appeals, that the refused charges are not reviewable for the reason pointed out by that court.
Let the writ be denied.
Writ denied.
ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.