Pike v. Elliott , 36 Ala. 69 ( 1860 )

STONE, J.

It is objected to the complaint in this case, that it does not aver that the land on which the alleged trespass was committed is in Talladega county. We have compared the complaint with the form furnished by the Code, (page 555,) and-find that it contains every material requisite expressed in the form. The form, like the present complaint, omits all mention of the venue, or situs of the locus in quo. The complaint, being a substantial copy of the form given in the Code, must, under our previous decisions, be held sufficient. — Noles v. The State, 24 Ala. 672; Letondal v. Huguenin, 26 ib. 552; Pickens v. Oliver, 29 ib. 528.

[2.] The defendant’s motion to exclude the evidence of the plaintiff’s witness, Rutledge, was rightly overruled. True, that evidence may not have been sufficient, of itself, to make out the plaintiff’s case. There is a wide difference, however, between the relevancy and the sufficiency of evidence. The testimony tended proximately to prove certain material points in the plaintiff’s right of recovery, and, for that reason, it was relevant. If, after the plaintiff had closed his evidence, it failed to make out his case, either by an entire omission of testimony to some indispensable fact, or in some other way, it was the privilege of the defendant to have the judgment of the court on such question. In this case, we are not informed what additional proof the plaintiff offered. The.proof being relevant, the court did right in refusing to exclude it from the jury. — Bryant v. Hutcheson, 30 Ala. 441; Paulling v. Watson, 21 ib. 279.

[3.] To have admitted the testimony of Barry Rutledge, would have been to allow the defendant to give his own ■declarations in evidence. They were not admissible under the doctrine of res gesta.

The judgment of the circuit court is affirmed.