The appeal in this case must be dismissed, because there has been no final trial, on the indictment, in the court below.
The indictment was found by the grand jury of Elmore county.
The accused made an application to the court, in that county, for a change of venue, for causes set out in his affidavit.
The court granted the application, and ordered the venue to be changed to the county of Autauga.
The bill of exceptions shows that on the hearing “ it was admitted by the counsel for the State and 'defendant, that Montgomery county was the nearest court-house. It was also stated that Montgomery county was the nearest county, free from exceptions. It was also stated, that Autauga county, the court-house of which is only five miles further than Montgomery court-house, is, also, free from exceptions, and the county solicitor and his associate counsel, propo sed the trial to take place in Autauga county.”
"We do not, on this appeal and motion to dismiss, decide .whether this ruling of the court can, or cannot, be revised in this court. If it can, the accused must wait until the case is finally disposed of.
"We will, however, state that we should be better satisfied, if the court, on the admission made by the counsel of the State and the accused, had sent the case to the county of Montgomery for trial.