Harvey v. State

125 Ala. 47 | Ala. | 1899

HARALSON, J.

1. The only questions needing comment in this case, arise on the refusal of the court to give the 3d and 4th charges. The 3d has been recently condemned as misleading and for that reason, there was no reversible error in its refusal. — Avery v. The State, 124 Ala. 20.

2. When there is no proof on the trial of a criminal case, tending to show that the offense charged in the indictment was committed in the county where the indictment is found, it is error to refuse the affirmative charge requested by defendant in writing. — Brown v. The State, 100 Ala. 29; Randolph v. The State, Ib. 139; Henderson v. The State, 105 Ala. 82.

The only question then, in passing on the 4th charge, is, was there any proof adduced on the trial, tending to show that the offense was committed in Barbour county. The only evidence tending to show where Lizzie Bray, the deceased, lived is, that her place of residence was on the McAllister place, near Batesville, but how near is not shown, nor is it shown that the McAllister place where she was killed, was in Barbour county. From aught appearing, she may have lived and been Idlled out of that county. We are unable to say that there was any evidence tending to prove the venue of the crime, and the 4th charge requested by defendant should have been given.

There was no error in refusing defendant’s 1st and 2d requested charges.

Reversed and remanded.