Opinion
7 Div. 221.
April 13, 1937. Rehearing Denied May 11, 1937.
Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.
Roy Jackson was convicted of violating the prohibition law, and he appeals.
Affirmed.
The indictment under which this appellant was tried is as follows: "The grand jury of said county charge that before the finding of this indictment, Roy Jackson and Fred Cook, whose true names are to the grand jury unknown otherwise than as stated, did transport in quantities of five gallons or more, prohibited liquors, contrary to law, against the peace and dignity of the State of Alabama."
The plea in abatement alleges, in substance, that at the time said indictment was procured the court of common pleas of Calhoun county had jurisdiction of the defendant under a capias issued by said court charging the commission of an offense — possession of prohibited liquor — constituting a misdemeanor and violation of the prohibition law, which said offense arose out of the same acts, facts, transaction, or matter as the offense charged in said indictment and that defendant was at liberty on bail, awaiting trial at the time of his arrest under this indictment. Hence, it is asserted, the circuit court is without jurisdiction.
The demurrer to the plea takes the objection that it is not alleged or shown that defendant has been in former jeopardy; that it is not alleged or shown that there has been any final disposition of the misdemeanor by said court of common pleas.
The following charges were refused to defendant:
"9. I charge you, gentlemen of the jury, that if there is a reasonable doubt in the mind of any one of you as to whether or not Roy Jackson had in his possession prohibited liquor on the occasion charged by the State, then you must acquit him.
"10. The Court charges the jury that if there [is] in the mind of any individual juror a reasonable doubt of the guilt of Roy Jackson on the charge of transporting prohibited liquor, then the jury must acquit him.
"12. I charge you gentlemen of the jury that if from the evidence there is a reasonable doubt in the mind of any one of you as to whether or not the offense complained of was committed in Etowah County then you must acquit the defendant.
"13. I charge you gentlemen of the jury that if you find from the evidence that a case based upon the same facts, circumstances, matter, transaction, or evidence was instituted in the Court of Common Pleas, Calhoun County, on, to wit, August 29, 1935, and prior to the time the indictment under which the defendant is being tried, was found, both of said cases being against this defendant, then you cannot convict him in this case.
" 'A.' I charge you, Gentlemen of the Jury that if the evidence in this case does not convince you beyond a reasonable doubt that the Defendant was Transporting prohibited liquor from a dry state to a dry state, or from a wet state to some point in Alabama; or from some point in Alabama to another point in Alabama, or from some point in Alabama to a wet or dry state, on the occasion complained of, then you must acquit the Defendant."
David C. Byrd, of Gadsden, for appellant.
When two courts have concurrent jurisdiction over a particular subject matter, the one first taking cognizance of a case falling thereunder will retain jurisdiction throughout to the exclusion of the other and until final determination. Harmon v. State, 8 Ala. App. 311, 62 So. 438; Gustin v. State, 10 Ala. App. 171, 65 So. 302; Pippin v. State, 156 Ala. 184, 47 So. 266; Merriweather v. State, 153 Ala. 52, 45 So. 420. The State cannot elect to prosecute and try a person for a lower grade and then put him on trial for a higher grade of the same offense. State v. Blevins, 134 Ala. 213, 32 So. 637, 92 Am. St. Rep. 22; Moore v. State, 71 Ala. 307; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am.St.Rep. 17. The plea is one in abatement; the demurrer undertakes to test it as a plea of former jeopardy, which is a plea in bar. The demurrer is inapt. Hammonds v. Tuscaloosa, 21 Ala. App. 286, 107 So. 786; Smith v. Davenport Co., 12 Ala. App. 456, 68 So. 545; 16 C.J. 174, §§ 225, 226. Evidence as to venue was not sufficient. Dossett v. State, 19 Ala. App. 496, 98 So. 359; Mayhall v. State, 22 Ala. App. 223, 114 So. 361; Smith v. S. H. Kress Co., 210 Ala. 436, 98 So. 378; Pate v. State, 20 Ala. App. 358, 102 So. 156; Mooney v. State, 23 Ala. App. 446, 126 So. 611; Patterson v. State, 156 Ala. 62, 47 So. 52; McBryde v. State, 156 Ala. 44, 47 So. 302. It was error to refuse charge 9. Ala. Code 1928, § 4717 (1). Likewise charge 11. Code 1928, §§ 4535, 4891; Const. § 6. Charge A asserts a correct proposition of law and should have been given. Code 1928, § 4717 (1); James v. State, 25 Ala. App. 335, 146 So. 424; Fox v. State, 23 Ala. App. 371, 125 So. 783.
A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
The plea in abatement is insufficient. It is not shown defendant was ever in jeopardy in the court of common pleas. Whatley v. State, 17 Ala. App. 330, 84 So. 860; 1 Bouv. Law Dict. (Rawles' 3rd Rev.) 296. A prosecution for a misdemeanor when in fact defendant was guilty of a felony, even if the facts and the occasion are the same, does not bar a prosecution for felony by a court of competent jurisdiction. Harris v. State, 2 Ala. App. 116, 56 So. 55; Thomas v. State, 114 Ala. 31, 21 So. 784.
Appellant was tried under an indictment for the offense denounced by the law of our state as codified into section 4717 (1) of Michie's Code of 1928. The indictment, following the language of said statute was, of course, not subject to the demurrers interposed.
The offense charged in the indictment being a felony, manifestly no prosecution for a misdemeanor, merely pending, in an inferior court could be a cause for the abatement of the proceedings. Hence, the demurrers to appellant's plea in abatement were properly sustained.
It was proper to allow the State's witnesses to testify — they knowing the locus in quo — as to the offense being committed within Calhoun county. Location of county boundary line to determine venue does not call for expert testimony, but may be proven by general reputation. Melton v. State, 21 Ala. App. 419, 109 So. 114; Granberry v. State, 184 Ala. 5, 63 So. 975; 2 Encyc. of Evidence 723.
None of appellant's written, requested, and refused charges 9, 10, 12, 13, and the unnumbered one we have designated on the record "A," asserts a correct proposition of law. Each was properly refused.
Written charge 11 requested by appellant — the general affirmative charge — was obviously refused without error.
We find, nowhere, an erroneous ruling prejudicial to appellant's rights, and the judgment is affirmed.
Affirmed