37 So. 2d 223 | Ala. | 1948
The petitioner was convicted of incest, the offense denounced by § 325, Title 14, Code of 1940, and was sentenced to the penitentiary for a term of seven years. From the judgment of conviction he appealed to the court of appeals where the judgment was affirmed. By his petition for certiorari he seeks to review and reverse said judgment of affirmance. His major contention is that the indictment under which he was tried charged in separate counts incest and rape. Each of said counts was in statutory form (Code of 1940, Tit. 15, § 259, forms 67 and 89) and named as the injured party or victim of said offenses the same person — Gladys Green, as the evidence stated by the court of appeals shows, the daughter of his wife. Code of 1940, Tit. 14, § 325.
Petitioner's major contention is that the indictment is duplicitous, that there was a misjoinder of offenses in the indictment and that his demurrer interposed. thereto was erroneously overruled. We are not of opinion that this contention has merit. The questions presented are not. within the influence of §§ 248, 249, Tit. 15, Code of 1940, dealing with alternative averments in a single count of an indictment, but are governed by well settled principles of procedure and trial practice which are well expressed in some of our early cases.
In Mayo v. State,
Demurrer to the indictment is not the appropriate remedy. Tanner v. State,
It is not permissible to join counts for felonies with counts for misdemeanor in the same indictment and such joinder renders the indictment demurrable. Adams v. State,
The other questions argued by petitioner relate to rulings on the admission or rejection of proffered testimony and to all such rulings the courts of appeals applied the doctrine of error without injury. In the absence of a full statement of the evidence in the opinion of the court of appeals, these questions are not reviewable on certiorari. Campbell v. State,
The prayer of the petition is due to be denied and petition dismissed.
Certiorari denied and petition dismissed.
LIVINGSTON, SIMPSON, and STAKELY, JJ., concur.