Lowery v. State , 103 Ala. 50 ( 1893 )

HEAD, J.

The appellant was indicted and tried for the offense of murder, and convicted of manslaughter in the second degree, and fined $50, and sentenced to imprisonment in the county jail for one month. The indictment and trial were in that division of the circuit court of Blount county created and defined by the act of the General Assembly, entitled, “An act to establish an additional circuit court in the county of Blount, and to provide a place for holding the same.” — Acts 1890-91, p. 592. It is insisted this act is unconstitutional, and the argument made in the brief is, that the legislature has power, under the constitution, to create inferior courts only, and that this is not an inferior court, because the act contains no provision by which its proceedings may be reviewed by a higher tribunal. When the act is examined it is seen that it does not create a new court at all. Its purpose and effect are to divide the territorial jurisdiction of the circuit court, already established by the constitution, into two divisions, and to establish two places of holding that court, in Blount county — one in each division — and to confer upon each division exclusive jurisdiction of all causes, civil and criminal, arising in its territory. Combined, they constitute the circuit court of Blount county, as established by the constitution, and form a part of the 9th judicial circuit of Alabama. Wo have been referred to no provision of the constitution, and are aware of none, which imposes any limitation upon the power of the legislature to thus divide the territorial jurisdiction of the circuit court of a county, and appoint a place in each division for holding the court. No objection to the act has been pointed out to us, except that above stated; and the court being a division of the circuit court, the general statute of appeals applies to its judgments as well as to those of any other circuit court in the State. It was unnecessary that the act make a special provision for revision by the appellate court.

The appellant, in one general request, asked the court to give eight written charges, and reserved a general exception to the refusal of the court to give them. In such case, if any one of the charges is bad, we can not put the trial court in error, although one or more of the others may have been good. Looking at the first of these charges, we find it manifestly bad. It was for the jury, not the court, to determine whether the distance of 12 or 15 feet, which separated the combatants, was such perilous proximity as would have increased the defendant’s danger, if lie liad attempted to avoid tlie combat by retreat. We, therefore, do not consider the other charges. We can not revise the action of the trial court on motion for a new trial, in a criminal case.

Affirmed.