| Ala. | Mar 2, 1907
The plea in abattment which was overruled by the court, might well have been stricken on motion. There was, therefore, no eiror of which appellant can complain in the ruling of the court in disposing of it as was done.
The demurrer interposed to the plea of former jeopardy was properly sustained. The jeopardy sought to he invoked as a bar to the further prosicution was based upon the action of the court with respect to a plea in abatement, and not one in liar. Had the trial upon the plea, culminated in a. verdict and judgment for or against the issue tendered by it, such judgment, would not have been a bar to a subsequ.nt prosecution for the offense charged in the indictment, for the obvious reason that it was not an adjudication upon the merits involving the defendant’s guilt or innoctnce. When such a plea is sustained by the verdict and judgment, the trial court should quash the indictment, and may order another preferred for the offense charged or intended to be charged. — Section 4922 of the (’ode of 1896. If the issue presented by the plea is found against it, then a trial must be had upon the indictment and the prisoner’s plea of not guilty.
There was clearly no error in the ruling sustaining the objection to the question “whether or not the road in question was in as good condition during the year 1905 as other roads in the community.” The fact that other roads were in had condition -was no excuse or justification for the defendant’s failure to discharge his duty as road overseer. Furthermore, the question could have been answered by stating the condition of roads other than public roads.
The motion to exclude the entire, evidence introduced by the prosecution was properly denied, as we will show. The contention in support of it proceeds upon the the
Bu.t it seems to be conten did that, because the commission evidencing his-appointment was not served by the. sheriff and shown by his return of a copy thereof showing such service, it was not entitled to any piobative force Avhatever. In other Avords, the insistence seems to be that defendant’s appointment could tum-been proven in no other Avay than by a copy of the commission. to him and the sheriff’s return made themm, in the event the copy returned by the sheriff is not lost? and his acts or admissions. — Section 5398 of the Code of 1896. It may be conceded, for the purpose of this case, that the original paper commissioning the defendant might have been excluded upon timely objection, because not the best evidence, of bis appointment; yet. if it Avas permitted to be introduced without objection, as was the case, its probative force could not be destroyed in the manner attempted. Being in evidence, the court bad no right to ignore it. as evidence. It shoAved. the defendant's appointment, and that the road he Avas to discharge tin1 dutiss of overseer upon Avas in GeneAra county.
There is clearly no merit in tin1 contention that a portion of the road Avas not shown to he a public road, because no!, shown to have been opi ned by authority of the county.commissioners. II Avas shown that defendant, as OA^erseer, Avorked it as a public road, and that it Aims used by the public, as such. This Avas all the proof required. — Section 5398 of the (’ode of 1896.
Affirmed.