Opinion
8 Div. 891.
November 21, 1933. Rehearing Denied January 9, 1934.
Appeal from Law and Equity Court, Lauderdale County; Orlan B. Hill, Judge.
Willie Vinson was convicted of bastardy, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in 228 Ala. 105, 152 So. 260.
Raymond Murphy, of Florence, for appellant.
The circuit court can only obtain jurisdiction through the bond from justice of the peace court or through defendant being in jail for failure to give bond at trial in the justice court or unless defendant waives defective bond by appearance. If the bond does not conform to the statute, it is void. Laney v. State, 109 Ala. 34, 19 So. 531; Walker v. State, 108 Ala. 56, 19 So. 353; Hanna v. State, 60 Ala. 100; Seale v. McClanahan, 21 Ala. 345; Wilson v. Judge, 18 Ala. 760; Code 1923, §§ 3361, 3374, 3375, 3418, 3425; 7 C.J. 983. The burden of proof, to establish the fact that prosecutrix was single at the time, is upon the prosecution. Code 1923, § 3416; White v. State, 170 Ala. 1, 54 So. 430. A confession, in order to be admissible, must be shown to have been voluntarily made. Aikin v. State, 35 Ala. 399; Perkins v. State, 60 Ala. 7; Eskridge v. State, 25 Ala. 30.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
When a defendant in bastardy proceedings is bound over to the circuit court, the proceedings will not be quashed because of any deficiency or irregularity in the appearance bond. Looney v. State, 25 Ala. App. 23, 140 So. 181. Motion to quash affidavit and warrant comes too late when it is made for the first time in the circuit court or a court of equivalent jurisdiction. Williams v. State, 113 Ala. 58, 21 So. 463; Walker v. State, 108 Ala. 56, 19 So. 353; Miller v. State, 110 Ala. 69, 20 So. 392. Moreover, the record does not show any exceptions reserved to rulings of the trial court in this respect. Nor is it in any wise shown that appellant's substantial rights were impaired. The sufficiency of the evidence is not subject to review, as there is no request for the affirmative charge nor a motion for new trial. England v. State, 23 Ala. App. 393, 120 So. 174; Bentley v. State, 22 Ala. App. 101, 112 So. 810; Woodson v. State, 170 Ala. 87, 54 So. 191. But, assuming the sufficiency of the evidence is reviewable, there was sufficient evidence to reasonably satisfy the jury of defendant's guilt. This is the degree of proof in bastardy cases, and corroboration of the prosecutrix' testimony is unnecessary. Yielding v. State, 23 Ala. App. 335, 125 So. 203; Strain v. State, 24 Ala. App. 361, 136 So. 848; Id., 223 Ala. 394, 136 So. 849. No objection having been made nor exception reserved to evidence of the confession, the admission of same is not subject to review. However, a predicate was laid for its admission.
From a judgment of conviction for bastardy this appeal was taken.
Errors are assigned as the law requires in cases of this character.
On the trial in the court below the defendant offered no evidence. The evidence of the state was amply sufficient to meet the required rule, and therefore to sustain the verdict of the jury and the judgment of conviction pronounced and entered in accordance therewith. Moreover, this question was not presented on the trial, as there was no request for the affirmative charge, nor a motion for a new trial. England v. State, 23 Ala. App. 393, 126 So. 174.
The several insistences relating to alleged irregularities of the appearance bond in the justice of the peace court cannot avail the appellant, as it affirmatively appears he suffered no injury in this connection. Looney v. State (Ala.App.) 140 So. 181. Moreover, it appears from the record that he failed to appear in the circuit court when his case was called, but made default, necessitating the issuance of an alias capias and his rearrest. In addition to what has been said, it has many times been held that a motion to quash the affidavit and warrant comes too late when it is made for the first time in the circuit court or other court of equivalent jurisdiction.
The remaining question relates to the admission of evidence of the confession of defendant without first having laid a proper predicate. The point is presented here for the first time. In other words, no ruling at nisi prius was invoked or had in this connection, as the record shows the witness was allowed to testify without objection, and, so far as this court can know, with the full consent of defendant. In cases of this character the jurisdiction this court has is appellate only. In other words, review here in such cases is limited to those matters upon which action or ruling at nisi prius was invoked or had. The lower court may not be placed in error in the absence of some erroneous and prejudicial action or ruling by it. Moreover, a proper predicate was laid as to the confession of defendant when the remaining witness for the state gave evidence relative thereto.
We discover no reversible error on the trial of this case in the court below. Its judgment therefore is affirmed.
Affirmed.