Marberry v. State, 60 So. 940

Marberry v. State

60 So. 940 | Ala. Ct. App. | 1913

THOMAS, J.

The defendants Avere indicted and convicted in the circuit court of Coosa county, sitting at Goodwater. The county seat of that county is Rockford, Avhere under the law all the terms of said court had been held, until the act of the Legislature of 1907, AAdiich provided that tAvo terms a year of said court should be also held at Goodwater in said county for the trial of those causes, civil and criminal, Avithin its jurisdiction, arising in beats 3, 4, 5, and 12 of said county. —Local Acts 1907, pp. 216, 735.

At the conclusion of the evidence in the present case the general affirmative charge Avas requested by the defendants upon the theory that the state did not prove the venue — that is, that it failed to prove that the offense Avas committed in either of the. precincts named of said county. The record affirmatively shoAvs without dispute, putting together, as Ave do, the testimony of several of the witnesses therein • found, that the offense Avas committed in Coosa county at Hatchett Springs at *60tbe baseball grounds about four miles from Goodwater —the place where the courthouse was situated iu which the trial was being conducted. Facts practically identical with these were under review in the case Of Pearson v. State, 5 Ala. App. 68, 59 South. 526, where it was held that the affirmative charge was properly refused. Following that authority, we so hold in the present case.

The defendants, being indicted for an assault and battery on Temus Carmichael, filed a plea of former jeopardy, attaching to and making a part of the plea a copy of an affidavit and warrant issued thereon by a justice of the peace, charging- the defendants with assault and battery with sticks and rocks on Temus Carmichael, together with a copy of the judgment of said justice upon trial of said charge, binding the defendants over on said charge, under bail fixed, to await the action of the grand jury. There was a demurrer to the plea upon the ground that it failed - to aver a state of facts which would constitute former jeopardy, but averred a state of facts which showed on its face that the proceeding before the justice of the peace Avas only.a preliminary hearing of a charge — assault and battery with a weapon —of Avhich he had no final jurisdiction. The demurrers were sustained — rightfully so, too clearly, Ave think, to need discussion. A justice of the peace has no final jurisdiction of assault and battery where a stick or other Aveapon is used. — Code, § 6733. Hence the proceedings before him alleged in the plea did not amount to jeopardy. — Horton v. State, 80 Ala. 8; Gunter v. State, 83 Ala. 96, 3 South. 600; Ex parte Robinson, 108 Ala. 161, 18 South. 729.

We find no error in the record, and the case is affirmed.

Affirmed.