Caldwell v. State

55 So. 2d 211, 36 Ala. App. 229, 1951 Ala. App. LEXIS 442

• Court: Alabama Court of Appeals
• Decided: August 21, 1951
• Docket: 6 Div. 184
• Status: Published

Opinions

PRICE, Judge.

Appellant was convicted of the offense of incest,, and was sentenced to imprisonment in the penitentiary for a term of seven years.

The State contends that appellant had sexual intercourse with his daughter, a girl seventeen years of age.

The principal insistence in brief for appellant is that defendant was entitled to an acquittal, because the verdict of the jury was based upon the uncorroborated testimony of the prosecutrix, who was shown to be an accomplice under the facts adduced on the trial. This question is not presented for our decision. The point was not raised in the trial court by the request for the affirmative charge, motion to exclude the evidence, motion for a new trial, nor in any other manner.

In the case of Lockwood v. State, 33 Ala.App. 337, 33 So.2d 401, 402, Bricken, P. J., pertinently stated the rule by which this court is bound in reviewing the nisi prius courts: “In respect of cases in the category to which this case belongs, the jurisdiction this court has is appellate only. Review here, in such cases, is limited to those matters upon which action or ruling at nisi prius was invoked and had. Accordingly, where the evidence is deemed insufficient to warrant a conviction a ruling- of the trial court on that proposition must be properly (usually by special instruction requested) invited, in order to invoke or justify a review of the question, so raised below, by this appellate court.” Pugh v. State, 239 Ala. 329, 194 So. 810; Dodson v. State, 27 Ala.App. 286, 171 So. 384; Denton v. State, 17 Ala.App. 309, 85 So. 41; Dotson v. State, 35 Ala.App. 59, 43 So.2d 434; Lee v. State, 35 Ala.App. 566, 50 So.2d 456.

We have considered the several rulings of the court on the admission and exclusion of the evidence and find no reversible error.

Refused charge 18 has no application. The guilt of the defendant did not depend on circumstantial evidence.

Refused charges 24 and 25 were abstract. Defendant offered no proof of his good character.

The remaining charges refused to defendant were fairly and substantially covered by the court’s oral charge, to which no exceptions were reserved, or by the charges given at defendant’s request.

There being no reversible error in the record, the judgment of conviction must be affirmed.

Affirmed.