Eaton v. State

• Decision Date: 17 June 1924
• Docket Number: 6 Div. 399.
• Citation: 20 Ala.App. 187,101 So. 471
• Parties: EATON v. STATE.
• Court: Alabama Court of Appeals

101 So. 471

20 Ala.App. 187

EATON v. STATE.

6 Div. 399.

Court of Appeals of Alabama

June 17, 1924

Rehearing Denied July 22, 1924.

Appeal from Circuit Court, Jefferson County, Bessemer Division; J C. B. Gwin, Judge.

Clay Eaton was convicted of violating the prohibition law, and appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Eaton, 101 So. 471.

Pinkney Scott, of Bessemer, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

FOSTER J.

The indictment contained two counts; the first count charged the manufacture of prohibited liquors, and the second count charged the unlawful possession of a still. The defendant was named in the indictment as "Clay Eaton, whose name to the grand jury is otherwise unknown." The defendant filed plea of misnomer, averring that his name was Clave Eaton and that he had never been known as Clay Eaton. The plea in abatement, not being verified by affidavit, is insufficient as a plea of misnomer. Section 7567 of the Code of 1907 reads:

"No plea in abatement, or other dilatory plea to an indictment, must be received, unless it is verified by oath or unless its truth appears by some matter of record, or other written evidence accompanying it."

The indictment follows the language of the statutes under which each count was drawn, and is sufficient. Morris v State, 18 Ala. App. 456, 93 So. 61, and authorities there cited.

It is earnestly insisted by counsel for appellant that the refusal of the court to give the general affirmative charge requested by the defendant should work a reversal of this case, on the ground that the proof failed to show that the offense was committed within the jurisdiction of the Bessemer division of the circuit court of Jefferson county. The evidence for the state tended to show that the offense was committed in beat 49 of said county, and said beat is within the jurisdiction of the Bessemer division of the circuit court. Local Acts 1919, p. 62.

It does not appear from the record that the failure to prove venue was brought to the attention of the trial court. Circuit court rule 35 provides that whenever the general charge is requested, predicated upon failure to prove time, venue, or any other point not involving the substantive right of defense, the court will not be put in error for refusing said charge, unless it appears, on appeal, the point upon which it was asked was...