JACKSON v. STATE

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Docket Number

7 Div. 221.

Attorney(S)

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.

Judges

RICE, Judge.

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JACKSON v. STATE.

RICE, Judge.

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

JACKSON v. STATE.

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