Mitchell v. State

• Decision Date: 30 June 1916
• Docket Number: 6 Div. 82
• Citation: 72 So. 507,15 Ala.App. 109
• Parties: MITCHELL v. STATE.
• Court: Alabama Court of Appeals

72 So. 507

15 Ala.App. 109

MITCHELL v. STATE.

6 Div. 82

Court of Appeals of Alabama

June 30, 1916

Appeal from Criminal Court, Jefferson County; H.P. Heflin, Judge.

Henry Mitchell was convicted of violation of the prohibition statute, and appeals. Affirmed.

McQueen & Ellis, of Birmingham, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.

EVANS J.

This appeal is taken from a judgment of conviction for violation of the prohibition statutes. The prosecution was instituted upon an affidavit made before the judge of the inferior court of Ensley, having jurisdiction of a justice of the peace. The warrant issued was made returnable to the criminal court of Jefferson county.

A motion was made to quash the affidavit and warrant because both the jurat of the affidavit and the warrant were signed "F.O. Harris, Judge of the Inferior Court of Ensley County, Alabama." The transcript contains no bill of exceptions. This being true, appellant's motion to quash is not before us for review, and for the same reason the written charges set forth in the record as requested by appellant, and which the court refused to give, cannot be considered (Weyms v. State, 69 So. 310; Josiah Clark v. State, 72 So. 291; Ex parte Watters, 180 Ala 523, 61 So. 904); and for the same reason appellant's motion for a new trial cannot be reviewed. Acts 1915, p. 722

Aside from these considerations, it is made our duty under the statute to examine the record proper for error prejudicial to appellant. Upon examination, we are of opinion that the question of the validity of the affidavit, above adverted to is without merit. This court takes judicial cognizance of the fact that the name of the Ensley court is the inferior court of Ensley (Local Acts 1903, p. 698), and as well of its jurisdiction and the public functionary who is its judge, and also that said court is in Jefferson county, and that there is but one court of that name in that county. The insertion of the county after the name of the judge and the court was mere repetition of the caption of both the affidavit and warrant, and the failure to write in the word "Jefferson" before the word "County" was a clerical misprision wholly unimportant, and the repetition of the county might properly be disregarded as surplusage. Kirk v. State, 70 So. 990; Cary v. State, 76 Ala. 78; Sandlin v. State, 76 Ala 403; Coleman v. State, 63...