¶1This appeal is from a final judgment of conviction and sentence based upon a jury verdict finding appellant guilty of the offense of rape, with recommendation of" mercy.
¶2By his first point on appeal appellant-challenges the constitutionality of F.S. Section 794.01, F.S.A., which defines and prohibits the offense of rape and prescribes the-penalties for its violation. It is appellant’s-contention that the statute authorizes the-imposition of penalties which constitute cruel and unusual punishment within the-proscriptions of Amendment 8 to the U. S. Constitution.
¶3The issue respecting the constitutionality of the statute in question was neither raised in the trial court, nor was it passed upon-by the trial judge in this proceeding. Such-issue may not be raised for the first time-by the brief on appeal and is therefore not properly before this court for consideration.
¶4By his second point on appeal appellant questions the sufficiency of the evidence to sustain the jury’s verdict of guilty. We have carefully read the evidence adduced at the trial, and considered the arguments as to its sufficiency made by appellant in his brief. It is our conclusion that the evidence, when considered in the light most favorable to the prosecution, is suf*633ficient to support the verdict as rendered ',by the jury.
¶5We have considered the remaining points made by appellant in his brief, but find them to be without substantial merit.
¶6The judgment appealed is accordingly affirmed.