6 Div. 7.

82 So.2d 319 (1955)

Melvin IRVIN v. STATE.

Court of Appeals of Alabama.

Attorney(s) appearing for the Case

Marvin H. Galin, Cullman, for appellant.

John Patterson, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., for the State.

PRICE, Judge.

Under an indictment charging rape, the defendant was convicted of assault and battery, and a fine of $500 was assessed by the jury. The court imposed a sentence of six months at hard labor for the county as additional punishment for the offense.

We will not delineate the evidence since there was no motion for a new trial, no motion to exclude the evidence, no charges requested by defendant were refused, and the sufficiency of the evidence is not before us for review.

Suffice it to say, however, that the defendant admitted having had sexual intercourse with the prosecutrix twice on the night in question, but denied that she resisted him, and asserted that it was with her consent. He also testified that when he first made advances to her she bit him on the shoulder and he slapped her three or four times to make her let go.

A conviction may properly be had for the lesser offense of assault and battery under an indictment charging rape. Section 323, Title 15, Code 1940; Richardson v. State, 54 Ala. 158.

Appellant has filed no brief on appeal, but we have carefully searched the record, as we are required to do, and find no prejudicial error in any of the rulings of the trial court.

The judgment of conviction is ordered affirmed.



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