Waters v. State , 117 Ala. 189 ( 1897 )

McCLELLAN, J.

We cannot judicially know that that that part of the “Columbia and Rocky Creek road beginning at the forks of Rocky Creek and Dothan road and running to the six mile post toward Ashford, Ala.,” is in Henry county. There is no evidence in the record —and the bill of exceptions purports to set out all the evidence in the case — that the road described is 'in said county. On this state of the record, there is a manifest failure of the prosecution to prove the venue — that the defendant willfully failed or refused to work a public road in Henry county; and the affirmative charge requested by the defendant should have been given.

We. discover no error in the refusal of the court to give the other charge requested by the defendant.

We do not pass upon the ruling on the motion in arrest of judgmmt; but we remark with a view to another trial that it would at least be safest for a statement to be filed by -the solicitor setting forth, among other things, that the defendant was liable to the road duty which he is alleged to have willfully failed or refused to perform.

Reversed and remanded.