Kline v. State

41 So. 952 | Ala. | 1906

HARALSON, J.

It appears from the evidence, and is admitted by the state, that the offense was committed in that territory which was cut off from Cleburne and added to Calhoun county by the act of September 30, 1903, (Local Acts, 1903, p. 462§ and more than one-half mile inside of Calhoun as the line existed at the time of the killing.

The new county of Cleburne was formed by the act of the Legislature of December (5th, 186(5, (Acts, 186(5-7, p. 71) out of specified portions of Calhoun, Bandolph and Talladega counties, the boundaries of which include (503 square miles.

By act of February 14, 1867, (Acts, 1866-7, p. 432.) thirteen and a half sections were taken from Cleburne and added to Talladega county. This left 603 square miles in Cleburne less thirteen and one-half sections or 589 1-2 square miles in that county.

By act December 11, 1886, (Acts, 1886-7, p. 757) two sections or square miles were taken from Cleburne and added to Calhoun, leaving 587 1-2 square miles in Cleburne.

By act of September 30th, (Acts, 1903, p. 462) six sections or square miles were again taken from Cleburne and added to Calhoun, leaving 581 1-2 square miles in Cleburne.

By section 39 of the constitution of 1901, it is provided, that “no new county shall he formed hereafter of less extent than 600 square miles, and no existing county shall be reduced to less than six hundred square miles.” The same provision is found in the constitution of 1865,. 1868 and 1875, (Art. 2 sec. 2 in each of said constitutions. )

It would seem, therefore, that the act of February 14th, 1866-7, by which thirteen and a half square miles were taken from the 603 square miles in Cleburne, reducing it thereby to 587 1-2 square miles was directly opposed to and forbidden by the constitution of 1865. The invalidity of this act left in Cleburne its original 603 square miles. The act of 1886 by which two sections were taken from Cleburne and added to Calhoun, still left 601 1-2 sections in Cleburne, and the latter act did not, therefore, violate the constitution by reducing the square miles of the county below 600. But, the act of the 30th of September, 1903, 1)3' which six sections or square miles were taken from Cleburne and added to Calhoun, thus reducing the former from 601 1-2 to 595 sections, contravened the constitution, and was, therefore, invalid. In as much as the offense for which the defendant is prosecuted, ivas committed in Cleburne county, the indictment was .improperly found in Calhoun. It is unnecessary to consider any other questions raised.

Reversed and remanded.

Weakley, C. J., Dowdell and Denson, JJ., concur.