Opinion
3 Div. 477.
February 17, 1925.
Appeal from Circuit Court, Autauga County; George F. Smoot, Judge. Leonard Russ was convicted of possessing a still, and he appeals. Affirmed.
P.E. Alexander, of Prattville, for appellant.
On failure of the state to prove venue, the affirmative charge for defendant should have been given. Code 1923, §§ 4535, 6078. Circuit court rule 35 does not apply.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The affirmative charge was properly refused. Ray v. State, 16 Ala. App. 496, 79 So. 620; Watts v. State, 204 Ala. 372, 86 So. 70; Fondren v. State, 204 Ala. 451, 86 So. 71; Reaves v. State, 18 Ala. App. 5, 87 So. 705.
There was sufficient evidence to submit this case to the jury, but no evidence as to venue. The affirmative charge was asked for defendant, but the fact that it was asked on account of a failure of proof as to venue was not brought to the attention of the trial court. This is not now an open question in Alabama. Ray v. State, 16 Ala. App. 496, 79 So. 620; Watts v. State, 204 Ala. 372, 86 So. 70; Fondren v. State, 204 Ala. 451, 86 So. 71; Reaves v. State, 18 Ala. App. 5, 87 So. 705. We find no error in the record, and the judgment is affirmed. Affirmed.