Taylor v. State , 131 Ala. 36 ( 1901 )

SHARPE, J.

It is unnecessary here to decide whether criminal are like civil cases subject to the rule that the court first acquiring jurisdiction of a cause will retain it to the exclusion of other courts having concurrent jurisdiction. On that subject see Moore v. The State, 71 Ala. 307; Humphries v. The State 122 Ala. 110; Archibald’s Cr. Prac. (8fch ed.), 336. The jurisdiction of the Monroe county justice extended no further than to determine the probability of defendant’s guilt with a view to discharging him or holding him by commitment or bail to await a future prosecution. The offense being a felony was cognizable alone in a circuit court, and under the constitution a prosecution therefor could have been commenced only by indictment. 'Those preliminary proceedings were not requisite to an indictment and could not of themselves have instituted a case in the circuit court, and the plea by disclosing them did not show the pendency of a prosecution in Monroe county which could have resulted in either a conviction or an acquittal. As bearing on the limited scope of such proceedings see Ex parte Crawlin, 92 Ala. 102 and State v. Vaughan, 121 Ala. 41.

Tlie act charged being an offense under law operating alike both in 'Conecuh and Monroe counties and occurring within a quarter of a mile of the boundary of those counties was within the district assigned by the statute to the criminal jurisdiction of the circuit courts of both of those counties. The prosecution was, therefore, not improperly in Conecuh county. — 'Code, § 4972; Jackson v. State, 90 Ala. 590; McKay v. State, 110 Ala. 19.

The constitutional provision entitling the accused in criminal prosecutions to a trial “by an impartial jury of the county or district in which the offense was committed” was contained in the constitution of 1868 and as there existing was construed in Grogan v. State, 44 Ala. 9, as not prohibiting the legislature to fix the venue for trial in either of two counties where an offense was within a quarter of a mile of their dividing line. In Jackson’s case, supra, it was held that such construction should be presumed to have been acted on by the framers of the constitution of 1875 when they adopted the same clause in the latter instrument, and on that principle the statute, now section 4972 of the Code, was held valid. Thus a question which if original might have been doubtful, must be considered as settled.

There is no error in the record. Let the judgment be affirmed.