97 So. 746 | Ala. Ct. App. | 1923
The trial of this cause was had at the fall term, 1921, at Clayton, Barbour county. The indictment was returned into the circuit court of Barbour county on the 27th day of April, 1920, properly indorsed a true bill, and signed by the foreman of the grand jury. The certificate of its filing was by the clerk of the circuit court. Under the law indictments in the circuit court of Barbour county may be returned by grand juries, sitting either at Eufaula or Clayton, and transferred to the proper division for trial. This court judicially knows that at the time this indictment was returned the court was in session at Eufaula, and the certificate of the clerk that it was filed in open court on the 27th day of April is conclusive that it was returned into court at Eufaula and not at Clayton, where no term of the circuit court was then being held, and the words "at Clayton" appearing in the caption to the indictment must therefore be a clerical misprision.
Again, it being the law that indictments in Barbour county may be returned by grand juries sitting either at Eufaula or Clayton, without reference to the territory in which the crime was committed, the addition of the words "at Clayton" is surplusage, and unnecessary to a valid indictment.
The evidence for the state clearly makes the question of guilt one for the jury, and, however persuasive may be the argument of appellant's counsel, the question is not for this court.
It appears from the bill of exceptions that the effort of the defendant was to show that the sale of the whisky was made by Dan Jimmerson, a son of defendant, and dedendant's counsel in argument to the jury so insisted. Dan, it seems, had been summoned as a witness by defendant and put under the rule, but not called or examined. The solicitor, in reply to the argument of defendant's counsel on this point, asked the question. "Where's Dan?" This is not such prejudicial argument as will authorize a reversal of the judgment.
We find no error in the record, and the judgment is affirmed.
Affirmed. *307
