McNutt v. State

On Rehearing. Upon the original consideration of this cause, the writ was denied without an opinion. Counsel for the defendant, upon rehearing, stresses in support of same error upon the part of the trial court as to an exception to the oral charge as well as a refusal of his requested charge D. It is sufficient to say, in response to this insistence, that these questions were not so treated in the opinion of the Court of Appeals as to enable this court to review same upon certiorari.

As stated in the case of Whisenant v. State, 223 Ala. 550,137 So. 457: "If, as counsel suggest, the question was argued and insisted upon in said court, it should have been so treated as to enable the defendant to present the question to this court. But, as such was not done, the mere general statement by the Court of Appeals, 'We see nowhere prejudicial error,' is not sufficient to call upon this court to pass on a legal question not discussed or treated by the Court of Appeals."

See, also, Simpson v. State, 214 Ala. 176, 106 So. 898; Folmar v. State, 217 Ala. 410, 116 So. 112.

Application overruled.

ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.