Ex parte THORNE. THORNE v. STATE

(105 So. 711) Ex parte THORNE. THORNE v. STATE. (6 Div. 512.) (Supreme Court of Alabama. Oct. 15, 1925.) 1. Criminal law @=1122(4) — Refused charges, not affected by fact that not all evidence appears in bill of exceptions, may be properly reviewed. There may be refused charge which should properly be reviewed, though all evidence does not appear in bill of exceptions, such as charges in no manner affected by that fact. 2. Criminal law @=1122(4) — Refused charges held not reviewable because bill of exceptions contained no recital that It contained all evidence. In view of Supreme Court rule 44, where petition and brief did not point out that refused charges come within class not affected by fact that bill of exceptions failed to disclose that it contained all evidence, the Supreme Court will assume in favor of ruling of Court of Appeals, that refused charges are not reviewable, because bill of exceptions did not contain such recital. (@=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Certiorari to Court of Appeals. Petition of Jack. Thorne for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Thorne v. State, 105 So. 709. Writ denied. 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 hill 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. [MAJORITY — PER CURIAM.] PER CURIAM. 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 he denied. Writ denied. ANDERSON, C. J„ and SAYRE, GARDNER, and MILLER, JJ„ concur.