Blair v. State

BRICKEN, Presiding Judge. In denying to defendant the general affirmative charge, the trial court acted in line with innumerable decisions of the appellate courts of this State, wherein the iule has been announced; that where there is evidence tending to make out a case against the defendant the trial court is without authority to direct a verdict. Alabama Digest, Vol. 6, 753. The appeal here is from a judgment of conviction for the violation of section 5411, Code 1923, which makes it an offense for any person to have carnal knowledge of a girl over twelve and under sixteen years of age, or abuses such girl in the attempt to have carnal knowledge of her, etc. The Statute does not apply to boys under sixteen years of age. The alleged injured party (the girl in question) testified that she was fifteen years of age at the time the defendant had sexual intercourse with her. The question of her age was not in conflict. Her testimony, if believed under the required rule, was sufficient upon which to predicate the verdict rendered. In some slight degree she was corroborated by other witnesses as to the time and place, but not as to the actual commission of the act. On the other hand, the defendant denied strenuously he had ever had sexual intercourse with the girl in question and offered testimony of numerous witnesses which tended to corroborate him. The evidence thus being in direct conflict made, as stated, a question for the determination of the jury. The defendant proved an excellent character by many witnesses and there was no controversy on this question. The conviction of the defendant rested upon the testimony of the girl in question principally, and if, as contended, a miscarriage of justice resulted, this court has no authority so to declare. Our jurisdiction is appellate only, and review here, in cases of this character, is limited to those matters upon which action or ruling at nisi prius was invoked or had. We are not vested with pardoning powers, but are confined to the duty of ascertaining whether or not error of a reversible nature occurred pending the 'trial of the case in the court below. No such error appears, hence we, perforce, must order an affirmance of the judgment of conviction from which this appeal was taken. The motion for a new trial is not presented for our consideration as it nowhere appears in the bill of exceptions that an exception to the court’s ruling thereon was reserved. This is necessary. Levene v. State, 26 Ala.App. 428, 161 So. 268. In that case the court said: “In seeking a review by the appellate courts upon the ruling of the lower court overruling a motion for a new trial, the statute does not require that the motion and judgment thereon shall be set out in the bill of exceptions, but under the statute (Code 1923, § 6088) it is mandatory that the bill of exceptions must contain a sufficient recital to show the making of such motion, the ruling thereon, and an exception thereto. These are the express terms of ' the statute.” Affirmed.