The appellant was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for seventy-five (75) years.

I

The sufficiency of the evidence upon which to base a conviction is not before the court, since the affirmative charge was not requested by the appellant, no motion to exclude the testimony of the State was made and no motion to set aside the verdict was filed after the judgment. Mims v. State, 23 Ala.App. 94, 121 So. 446; Sharp v. State, 21 Ala.App. 262, 107 So. 228; Davis v. State, 48 Ala.App. 629, 266 So.2d 839.

We have considered the entire record under Code 1940, T. 15, Sec. 389, and find that even though the necessary steps were not taken to test the sufficiency of the evidence, the evidence was sufficient upon which to base a conviction.

From a careful examination of the entire record we conclude that error is not made to appear.

The foregoing opinion was prepared by Hon. W. G. Hawkins, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Sec. 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

Affirmed.