Melton v. State

SAMFORD, J.

The defendant interposed a plea to the jurisdiction of the court, alleging that, if committed at all, the offense was not committed in Shelby county. This fact was jurisdictional, and, if the plea had been proven, the defendant would have been entitled to his discharge from the circuit court, or, if the state had failed to prove the venue on a plea of not guilty, the defendant would have been entitled to a verdict of acquittal. Bufkins v. State, 20 Ala. App. 457, 103 So. 902.

The location of the boundary line of Shelby county did not necessarily call for expert testimony of a surveyor, but could be proven by general reputation as to where the line was, and, whether the witness knew the exact location of the county line or not, he could from a general repute say whether a particular place was in the county. Tidwell v. State, 70 Ala. 33; Bufkins v. State, 20 Ala. App. 457, 103 So. 902; Miller v. Cullum, 4 Ala. 576; Farmer v. City of Mobile, 8 Ala. 279. The rulings of the court upon admission of testimony by state’s witnesses on the issue presented by the plea in abatement were free from error.

The defendant undertook to prove by certain witnesses that a certain place was more than one-fourth of a mile outside of Shelby county, but this place was not identified as the point at which defendant was charged with having made whisky, and such evidence was properly excluded. The evidence being in conflict upon the question presented by the plea in abatement, the general affirmative charge was properly refused. Galis v. State, 20 Ala. App. 300, 101 So. 778.

We have noted the long list of citations of authorities to sustain propositions of law announced.. We are familiar with these decisions and the principles they announce, but none of these are applicable to the case at bar. The defendant and two others were found at a whisky still in Shelby county. The still was in operation, the fermented beer was there in large quantities, the defendant and two others were walking about the still, the defendant had smut on his hands and face, and still slop on his clothes, and, when the officers came, he fled. The evidence was sufficient to make the question of guilt a jury question, and we would not be authorized to disturb their verdict.

The remark of the solicitor to which exception was taken ought not to have been made. Such statements have no place in legitimate argument, but this case w'as fairly tried and presented to the jury under a clear charge of the court. Upon the whole record we do not think the remark of the solicitor is sufficient error upon which to predicate a reversal.

The refused charges, when stating correct principles of law, are covered by the court’s oral charge.

We find no error in the record, and the judgment is affirmed.

Affirmed.