Woods v. State , 10 Ala. App. 96 ( 1914 )

WALKER, P. J.

The indictment was sufficient.— Bradford v. State, 104 Ala. 68, 16 South. 107, 53 Am. St. Rep. 24.

The bill of exceptions, after setting out a part of the court’s oral charge, states that “before the jury retired the defendant duly excepted to that portion of the oral charge in quotations and underscored.” Nothing that purports to be a quotation from that charge is underscored in the bill of exceptions found in the record. The result is that the subject of the exception reserved is not identified. The record does not enable us to know to what part of the charge the exception was reserved. An exception is required to present for review on appeal a trial court’s instruction to the jury, and the exception is unavailing if the ruling thereby sought to be made the subject of review is not by a bill of exceptions distinctly disclosed to the reviewing court.

The statute (Code, § 6746) which prescribes the punishment to be imposed upon “any person who commits a crime against nature, either with mankind or with beast,” is broad enough in its terms to embrace all unnatural carnal copulations, whether Avith man or beast. ■ — 1 Hawkins, Pleas of the Crown, 357; Honselman v. People, 168 Ill. 172, 48 N. E. 304; Herring v. State, 119 Ga. 709, 46 S. E. 876. The method employed in the attempt of which there was evidence in this case was as much against the order of nature as any bestial'or Ainnatural copulation that can be conceived. An attempt to commit the offense is a misdemeanor. — Bordeaux v. Davis, 58 Ala. 611; Code, § 7622. Evidence having been adduced which tended to prove that the defendant was guilty of such an attempt, written charge 1 requested by him was properly refused. The statement made in the bill of exceptions as to the request‘by the defendant that the court give five written charges, which are set out, imports that it was a single request that the five charges be given. It is not made to appear that either of those charges was separately requested. As one of them was bad, the court did not err in refusing the request as made. — Yeats v. State, 142 Ala. 58, 38 South. 760; Mobile & Ohio R. Co. v. Minor, 6 Ala. App. 633, 60 South. 951.

The record discloses no error affecting the judgment of conviction and the sentence to hard labor consequent upon the defendant’s failure to pay the fine and to an additional term of hard labor as punishment for the offense, and the judgment is affirmed as to that part of it. As to its sentence of the defendant to hard labor for the payment of the costs, the judgment was erroneous because of its failure to show the court’s determination of the time required to work out the costs at the statuory rate; and that part of the judgment is reversed, and the case is remanded in order that the trial court may enter the proper judgment and sentence as to the costs.— Code, § 7635; Loudermilk v. State, 4 Ala. App. 167, 58 South. 180.

Affirmed in part, reversed in part, and remanded.