Opinion
8 Div. 747.
June 25, 1929.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Ed King was convicted of living in adultery, and he appeals. Affirmed.
Charges 2 and 3, refused to defendant, are as follows:
"The court charges the jury that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt and the jury should acquit him.
"3. The court charges the jury that before the jury can convict the defendant they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty."
Wm. C. Rayburn, of Guntersville, for appellant.
The verdict should have been set aside on defendant's motion. Davis v. State, 8 Ala. App. 147, 62 So. 1027; Salm v. State, 89 Ala. 56, 8 So. 66; Gilmore v. State, 99 Ala. 154, 13 So. 536; McCoy v. State, 170 Ala. 10, 54 So. 428. Charge 2 states the law correctly and should have been given. Walker v. State, 153 Ala. 31, 45 So. 640; Kirkwood v. State, 3 Ala. App. 15, 57 So. 504; Simmons v. State, 158 Ala. 8, 48 So. 606; Rosenberg v. State, 5 Ala. App. 196, 59 So. 366; Hubbard v. State, 10 Ala. App. 47, 64 So. 633. Likewise charge 3. Brown v. State, 108 Ala. 18, 18 So. 811; Burton v. State, 107 Ala. 108, 18 So. 284.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
Appellant was convicted of the offense of "Living in Adultery" with one Cordie Beck. Code 1923, § 3198.
A recital of the tendencies of the evidence would not be profitable. Suffice to say that we have carefully read the entire testimony and are of the opinion that, while it was sufficient, in the first instance, under the scintilla rule that prevails in this state (McMillan v. Aiken, 205 Ala. 35, 88 So. 135), to carry the issue of appellant's guilt vel non to the jury, yet, upon appellant's timely motion for a new trial, the verdict of the jury should have been set aside, in accordance with the rule laid down for guidance in such matters in Cobb v. Malone Collins, 92 Ala. 630, 9 So. 738.
However, the bill of exceptions carries no mention of the appellant's motion for a new trial, nor the ruling thereon, nor the exception reserved to said ruling. In this situation we are without authority to review the action of the trial judge in overruling appellant's said motion. Yates v. Barnett, 215 Ala. 554, 112 So. 122; Stokes v. Hinton, 197 Ala. 230, 72 So. 503.
Appellant's refused charge 1 was fully covered, and the legal substance thereof amply conveyed to the jury, by the trial court's oral charge, in connection with the written charges given at appellant's request.
Refused charge 2 is expressly condemned, upon ample cited authority, in Dubose v. State, 20 Ala. App. 193, 101 So. 911 Refused charge 3 is condemned in Amos v. State, 123 Ala. 50, 26 So. 524.
We have examined the exceptions reserved upon the taking of testimony, but, in each instance, the ruling underlying the exception is so clearly without prejudicial error that we deem separate discussion of same unnecessary.
The record has been diligently searched for prejudicial error but none can be found.
The judgment must be, and is, affirmed.
Affirmed.