Carter v. State, 107 Ala. 146

Carter v. State

107 Ala. 146 | Ala. | 1894

HEAD, J.

The special pleadings in this case are peculiar. The defendant was tried upon an indictment charging the statutory offense of using abusive language, &c. In connection with the plea of not guilty, he interposed in bar of the prosecution, what he termed a special jilea of “former jeopardy," in which he alleged that he had theretofore “been put in jeopardy, in this cause, to-wit, in this : on the 26th of January, 1895, W. W. Pryor made complaint, and affidavit before R. G. Jackson, a justice of the peace for Pike county, Alabama, which charged the same offense as in this cause charged, that upon said complaint said Jackson had jurisdiction to finally try and determine said cause and *150issued a warrant of arrest, under which defendant was arrested and brought before said Jackson, for trial on a sufficient complaint, whereupon defendant waived trial before the grand jury and required defendant to enter into bond to appear at next term of the Circuit Court to await the action of the grand jury.” The prosecuting attorney admitted this to be a good plea in bar of the indictment, by interposing to it what is termed a replication. This replication alleges, practically, the same facts as those set up in and implied by the plea, with the single further statement that the offense charged was not “an offense over which a justice of the peace has jurisdiction, as it ivas committed more than sixty days before prosecution was begun.” The judgment-entry, after reciting the interposition of the plea of not guilty and the special pleas and replication, recites that issue was joined “on said ideas.” We take this as showing that issue was joined on the replication. The plea of not guilty and the special defense were, without objection, submitted for trial together before the same jury. The verdict, in terms, responded only to the issue of not guilty, finding the defendant guilty and assessing a fine, making no allusion to the special defense.

It will thus be noticed that the only special issue raised upon the record, for trial before the jury, was whether the offense ivas committed more than sixty days before the prosecution was begun; hence it is that the several questions raised on the trial, as to what occurred before the justice of the peace, were irrelevant and immaterial. That which the court was asked to admit, on that line, was no more than what was in legal effect' confessed by the pleadings, and to reject it was not reversible error.

There was no error in the refusals of the court to exclude the portions of the solicitor’s argument to which objections were made.

It was within the discretion of the court to permit the replication to be written out after the trial on the facts began. The defendant was denied no right to demur to it, after it was written out, if he had desired to pursue that course.

The undisputed evidence sustained the replication, viz. : that the alleged offense, if committed at all, was committed more than sixty days before the prosecution *151was begun. The court, therefore, properly instructed the jury that, under the evidence in the case, the defendant hurl not been put in former jeopardy. As the defendant has not, by hi* bill of exceptions, made it to appear otherwise, .wo will presume the charge was requested by the solicitor, in writing. We cannot suppose, in the absence of a showing to that effect, that the court, of its own motion, without written request, charged upon the effect of the evidence. Lest it be thought that some sanction is given by us to the alleged defense of former jeopardy, if presented in some other shape than that in which the pleadings presented it in this case, we remark that the defense attempted was frivolous, and the plea, if the court had been moved thereto, ought to have been stricken out as such.

Tt was clearly within the province of the jury to determine whether the language imputed to the defendant by Minnie Pryor was insulting or vulgar or not. Charges 1, 2, 3 and 7 were, therefore, properly refused.

Charges 4, 5 and six were mere arguments.

We have no jurisdiction to revise the rulings of the lower court on motions for now trials in criminal cases. That jurisdiction is confined, by the statute, to civil eases. The bill of exceptions recites that the proper venue was proven.

There is no error in the record.

Affirmed.