When this cause was called for trial on April 1, 1919, defendant objected to being put upon trial, upon the ground that certain witnesses, which he had ordered to be subpænaed, had not been served or the subpænas issued. The judgment entry shows that the court overruled the objection, but there is nothing in the record tending to show that defendant offered any evidence in support of the objection. In the absence of evidence to the contrary, this court must presume that the trial court made proper investigation and properly exercised its discretion, consistent with the requirements of the Constitution. Sanderson v. State,168 Ala. 109, 53 So. 109.
The offense charged in the indictment was committed before the spring term, 1918, of the circuit court of Winston county, and the case was tried April 1, 1919. Sentence was for five years in the penitentiary. This sentence was error. The defendant should have been sentenced in accord with an act of the Legislature of 1919 (Acts 1919, p. 148). This act was construed and applied in the case of Rogers v. State, ante, p. 175, 83 So. 359, present term.
After carefully considering the evidence in this record, we fail to find facts sufficient to corroborate the testimony of the woman, who alone testified to the facts constituting the crime with which defendant is charged. If the crime was committed with the consent of the principal witness, the defendant would have been entitled to the general charge. Code 1907, §§ 7878, 7127. It is true, the woman testified that at each recurrent act the defendant used threats and intimidations, and that she yielded to him through fear, but the rape was too often repeated and continued too long without outcry for full credence to be given to the statement. But this question is not presented in such way as that it can be considered by this court on appeal, but may be a proper case for the consideration of the pardoning power.
We find no error in the record that would warrant a reversal of the judgment of conviction, but, the sentence being erroneous, the cause will be remanded for a proper sentence.
Judgment of conviction affirmed, and cause remanded for proper sentence.
Affirmed in part and remanded. *Page 310