
    (123 So. 290)
    KING v. STATE.
    (8 Div. 747.)
    Court of Appeals of Alabama.
    June 25, 1929.
    Wm. C. Rayburn, of Guntersville, for appellant.
    Charlie C. McCall, Atty. Gen., for the State.
   RICE, J.

Appellant was convicted of the offense of “Living in Adultery” with one Cordie Beck. Code 1923, § 319S.

A recital of the tendencies of the evidence would not be profitable. Suffice to say that we have carefully read the entire testimony and are of the opinion that, while it was sufficient, in the first instance, under the scintilla rule that prevails in this state (McMillan v. Aiken, 205 Ala. 35, 88 So. 135), to carry the issue of appellant’s guilt vel non to the jury, yet, upon appellant’s timely motion for a new trial, the verdict of the jury should have been set aside, in accordance with the rule laid down for guidance in such matters in Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738.

However, the bill of exceptions carries no mention of the appellant’s motion for a new trial, nor the ruling thereon, nor the exception reserved to said ruling. In this situation we are without authority to review th6 action of the trial judge in overruling appellant’s said motion. Yates v. Barnett, 215 Ala. 554, 112 So. 122; Stokes v. Hinton, 197 Ala. 230, 72 So. 503.

Appellant’s refused charge 1 was fullj covered, and the legal substance thereof amply conveyed to the jury, by the trial court’s oral charge, in connection with the written charges given at appellant’s request.

Refused charge 2 is expressly condemned, upon ample cited authority, in Dubose v. State, 20 Ala. App. 193, 101 So. 911 Refused charge 3 is condemned in Amos v State, 123 Ala. 50, 26 So. 524.

We have examined the exceptions reserved upon the taking of testimony, but, in each instance, the ruling underlying the exception is so clearly without prejudicial error that we deem separate discussion of same unnecessary.

The record has been diligently searched for prejudicial error but none can be found.

The judgment must be, and is, affirmed.

Affirmed.  