Opinion
8 Div. 765.
April 2, 1929. Rehearing Denied May 7, 1929.
Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.
Emmett Hagood was convicted of distilling and possessing a still, and he appeals. Affirmed.
Defendant's plea in abatement is as follows:
Comes the defendant by his attorney and for plea to the indictment says:
This court has no jurisdiction of this offense contained in the indictment, because the offense, if committed by defendant, was committed on the Alabama National Forest Reservation, which is the property of the United States, and which is under the jurisdiction and control of the United States government and under dominion of the United States laws and jurisdiction and that the state of Alabama has no jurisdiction over the same. All of which the defendant is ready to verify, and prays judgment that the court should take no further jurisdiction or cognizance of the indictment aforesaid and that he be discharged.
These are the grounds of demurrer interposed to said plea:
(1) The plea is no answer to the indictment.
(2) The facts averred show that the court has jurisdiction.
(3) It does not deny that the offense was committed outside of Lawrence county.
(4) The fact that the offense was committed on the Forest Reservation does not deprive or take away the jurisdiction of this court.
Mayhall Mayhall, of Haleyville, for appellant.
Evidence, purely hearsay, on the question of venue, is not permissible. Mayhall v. State, 22 Ala. App. 223, 114 So. 361; Patterson v. State, 156 Ala. 62, 47 So. 52; Dossett v. State, 19 Ala. App. 496, 98 So. 359.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The plea in abatement filed by defendant was no answer to the indictment in this case. The demurrer thereto was properly sustained. Garrison v. State, 217 Ala. 322, 116 So. 706. Moreover, the purported plea was not verified by oath, and this the statutes requires. Section 5197, Code 1923; that the offense complained of was committed Fason v. State, 19 Ala. App. 533, 98 So. 702.
There was ample evidence tending to show that the offense complained of was committed in Lawrence county, Ala., and within the period of time covered by the indictment to submit these questions to the jury and to justify the jury in their finding upon these propositions. Under all the evidence in this case, the affirmative charge in favor of defendant was properly refused.
The corpus delicti having been sufficiently proven, the principal inquiry upon this trial was the identity of the man who committed said offense. The evidence for the state tended to show that this appellant was the person at the still and operating same when the raid was made. That for the defendant tended to show otherwise, and this conflict of evidence upon this material question was for the jury to determine after a consideration of all the evidence submitted to them during the trial. The jury decided this inquiry adversely to defendant, and were, in our opinion, fully warranted in thus concluding as there was ample evidence to this end.
No ruling of the court constitutes prejudicial error. The record appears regular in all things. Let the judgment of conviction from which this appeal was taken stand affirmed.
Affirmed.