Morton v. Bradley , 27 Ala. 640 ( 1855 )

CHILTON, C. J.

The first count is clearly insufficient, as will appear by Martin’s Ex’rs v. Martin, 25 Ala. R. 201. The demurrers to the two amended counts, which aver a prosecution of the defendant before the grand jury, and that said jury refused to find a true bill against him for the killing of the slave, should have been overruled. The case of Nelson v. Bondurant, 26 Ala. R. 341, sustains these two counts.

The objection, that the counts or plaints do not specify the county in which the prosecution was bad, is not tenable. Tho venue is laid in the summons, and it is averred in the complaint that the prosecution was had at the Fall term of tho Circuit Court of “ said county”, &c. But the objection is untenable for another reason : it was not specified as one of the causes of demurrer, that the complaint failed to set forth the county in which the killing took place, and that the grand jury of that county had ignored a bill for the offence. The objection, to be available, must be distinctly stated in the demurrer. — Code, § 2253, p. .421. The general objection taken by the demurrer, that tho complaint does not show a sufficient prosecution, merely raises the question whether a prosecution before a grand jury, and their refusal to find a bill of indictment, is sufficient, and not that the plaintiff should state the county in which the prosecution was had.

Judgment reversed, and cause remanded.