FOLMAR v. STATE, 217 Ala. 410 (1928)

116 So. 112

FOLMAR v. STATE.

4 Div. 370.Supreme Court of Alabama.
March 27, 1928. Rehearing Denied April 12, 1928.

Brassell Brassell, of Montgomery, for applicant.

Newly discovered evidence offered by defendant was admissible. Houston v. State, 208 Ala. 660, 95 So. 145; Ellis v. State, 18 Ala. App. 544, 93 So. 334; Kawark v. State, 19 Ala. App. 279, 97 So. 113; Fries v. Acme White Lead Co., 201 Ala. 613, 79 So. 45. It was error for the state to seek to show on cross-examination that defendant had not summoned his wife.

Charlie C. McCall, Atty. Gen., for the State.

Brief did not reach the Reporter.

ANDERSON, C. J.

The Court of Appeals held that the defendant did not bring himself within the rule so as to entitle him to a new trial because of newly discovered evidence, for the reason that he did not allege or prove that said evidence was unknown to him at the time of the trial. This fact is, of course, essential, and the finding of same by the Court of Appeals will not be considered or disturbed by this court. Postal Telegraph Co. v. Minderhout, 195 Ala. 420, 71 So. 91.

The only other complaint against the holding of the Court of Appeals relates to a point which seems not to have been treated in the opinion of the said court. If the record presents point, it would, of course, be the duty of the Court of Appeals, under the statute, to consider same; but we only review said court upon questions decided, and not ones that are not treated.

The writ is denied.

SAYRE, GARDNER, and BOULDIN, JJ., concur.

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