KABASE v. STATE, 244 Ala. 182 (1943)

12 So.2d 766

KABASE v. STATE.

6 Div. 125.Supreme Court of Alabama.
March 25, 1943.

Certiorari to Court of Appeals.

Petition of the State, on the relation of its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Louis J. Kabase v. State, 12 So.2d 758, wherein a judgment of conviction for rape was reversed.

Writ denied.

Wm. N. McQueen, Acting Atty. Gen., and John O. Harris and Bernard F. Sykes, Asst. Attys. Gen., for the petition.

Beddow, Ray Jones, of Birmingham, opposed.

GARDNER, Chief Justice.

Following the adoption of Supreme Court Rule 45, Code 1940, Tit. 7 Appendix, substantial error is not presumed, but the burden is upon the appellant to show error, and before a reversal of the judgment is to be had, it must appear to the Court that the error complained of has probably “injuriously affected substantial rights of the parties,” to use the language of the rule. Henderson v. Tennessee Coal, Iron R. R. Co., 190 Ala. 126, 67 So. 414.

The opinion of the Court of Appeals cites approvingly Robinson v. State, 29 Ala. App. 47, 191 So. 649, containing an expression indicating a contrary view, which was corrected by this Court on review by certiorari (Robinson v. State, 238 Ala. 441, 191 So. 655) as appears from the concluding paragraph of the opinion. The Court of Appeals also cites Roan v. State, 225 Ala. 428, 143 So. 454. But what was there said is to be interpreted in the light of the question being considered — the granting of a new trial for “outside” interference with the jury in the matter of their deliberation on the verdict. That authority, therefore, is inaptly cited upon the question presented on this appeal.

We find no further reason for any criticism of the opinion of the Court of Appeals and conclude that the writ of certiorari is due to be denied. It is so ordered.

Writ denied.

BOULDIN, FOSTER, and LAWSON, JJ., concur.