Gardner v. State , 23 Ala. App. 126 ( 1929 )

On the question of the jurisdiction of the circuit court to try and determine this case, predicated upon the indictment by the grand jury, we refer to the case of Macon v. Holloway,19 Ala. App. 234, 96 So. 933. This case is conclusive of the questions raised by defendant's plea, and as a result there was no error in the court's rulings in this connection.

The charge was rape, and upon the trial the defendant was convicted and his punishment fixed at imprisonment in the penitentiary for ten years.

The evidence as to the commission of the offense by the accused was in sharp conflict. That for the state tended to prove every element of the crime charged; that for the defendant tended otherwise. Under this conflicting evidence a jury question was presented rendering inapt the general affirmative charge requested by defendant.

No brief has been filed by either the state or appellant upon this appeal. We have, however, carefully and attentively considered all questions apparent on the record, or reserved by bill of exceptions, and are clear to the conclusion that no reversible error appears in any ruling of the court upon the admission of evidence.

Several charges were refused to defendant. These charges in most instances, where they properly state the law, are duplicates of some of the charges given at request of appellant. There appears no charge refused to defendant, and which properly stated the law, that was not fairly and substantially covered by the given charges, and by the excellent oral charge of the court. Where this affirmatively appears, the court is under no duty to repeat instructions already given to the jury.

The record appears regular and without error. The judgment of conviction from which this appeal was taken will stand affirmed.

Affirmed.