Appellant, an indigent here and at nisi prius, entered a plea of not guilty to an indictment for robbery. The jury convicted him and fixed punishment at thirty years imprisonment. A proper judgment is an incident of this appeal. *Page 80

IAppellant in his brief asserts that he was denied his constitutional right to a speedy trial. Ala. Const., Art. I, § 6 (1901); U.S. Const., Amend. VI.

We fail to find in the record any motion or other proceeding which indicates that the point was raised at nisi prius in this case. The record fails to show a ruling of the Court. On appeal, this Court is limited to matters properly raised in the trial court. Phillips v. State, 47 Ala. App. 688, 260 So.2d 418 (2).

We do find that appellant's brief shows that a petition for habeas corpus was filed and denied by the trial judge. No appeal was taken to test the ruling of the Court. Facts asserted in the brief of appellant or appellee, which cannot be ascertained from the record will not be reviewed. Lucy v.State, Ala.Cr.App., 340 So.2d 840 (3); cert. den. Ala.,340 So.2d 847.

IIAppellant also asserts that the trial court committed reversible error in receiving into evidence defendant's inculpatory statement ". . . WHICH WAS PROCURED BY FORCE, COERCION, THREATS, PERSONAL INJURY . ." and because accused was not advised ". . . OF HIS CONSTITUTIONAL RIGHT MORE COMMONLY REFERED (sic) TO AS THE MIRANDA WARNINGS."

We have examined the record and find that defendant's rights were observed and protected by the Court. The hearing on the voluntariness of the statement was held outside the presence of the jury. Evidence was adduced at the hearing which supported the State's contention that the defendant was given his Miranda warnings, and that the statement was voluntary. Defendant testified to the contrary. The Court decided the issue in favor of the State. We will not disturb its ruling. The same evidence in substance was adduced before the jury. However, defendant did not take the stand before the jury. The hearing and proceedings before the jury comported with the requirements of the law. Wallace v. State, 290 Ala. 201, 275 So.2d 634.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a Retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.