Opinion
7 Div. 688.
February 1, 1921.
Appeal from Circuit Court, Dekalb County; W.W. Harralson, Judge.
Guinn Marshall was convicted of an assault with intent to rape, and he appeals. Affirmed.
Assault is alleged to have been upon the daughter of the witness McBrayer, who was permitted, over the objection of the defendant, to state what complaint his daughter made to him soon after the men left the house, the defendant having been accompanied to the house by one Paul Taylor.
Isbell, Scott Downer, of Ft. Payne, for appellant.
The evidence did not justify the verdict. 35 Ala. 280; 58 Ala. 376, 29 Am. Rep. 754; 90 Ala. 628, 8 So. 383, 24 Am. St. Rep. 850. Counsel discuss other assignments of error, but without further citation of authority.
J.Q. Smith, Atty. Gen. and Lamar Field, Asst. Atty. Gen., for the State.
The sufficiency of the evidence to sustain the judgment, not having been questioned in the trial court, cannot be here raised. 16 Ala. App. 592, 80 So. 166; 170 Ala. 87, 54 So. 191. To be considered, the motion for new trial should be shown by double exceptions. 79 So. 802. It was proper to show that defendant had been drinking. 17 Ala. App. 519, 86 So. 170.
The appellant was convicted of an assault with intent to ravish, and was sentenced to the penitentiary for an indeterminate term of not less than six nor more than eight years. We do not undertake to review the evidence, which we have considered with much care; suffice it to say that there was some evidence from which inferences might have been drawn by the jury unfavorable to the innocence of the accused. The bill of exceptions does not purport to contain all, or substantially all, of the testimony adduced in the trial of the case, and, this being so, we are constrained to believe there was other than that contained in the record. But for another reason we are precluded from a consideration of the testimony, even that part contained in the bill of exceptions. The motion for a new trial is not incorporated in and made a part of the bill of exceptions, and it does not appear what, if any, evidence was offered in support of the motion. Crawley v. State, 16 Ala. App. 545, 79 So. 804.
The sufficiency of the evidence to justify the verdict not having been questioned below, and the judgment following the verdict, an assignment of erroneous rendition of judgment presents nothing for review. Strickland v. Town of Samson, 16 Ala. App. 592, 80 So. 166; Woodson v. State, 170 Ala. 87, 54 So. 191.
There was no error in the ruling of the court in reference to the testimony of W.H. McBrayer. It appears to have been limited to the fact that the girl made complaint. Oakley v. State, 135 Ala. 15, 33 So. 23; Gaines v. State, 167 Ala. 70, 52 So. 643.
There was no error in allowing the state to show that the defendant and the witness Paul Taylor were drinking before and at or about the time they were at the house where the assault is alleged to have been made. The court stated that the testimony was allowed for the purpose of showing the condition of the parties at the time of the assault. Haswell v. State, 17 Ala. App. 519, 86 So. 170(6).
Refused charge 3 was substantially covered by other written charges and the court's oral charge. Besides, it is not entirely clear as to its meaning in the last sentence.
There is no error in the record, and the judgment is affirmed.
Affirmed.