The defendant filed two pleas in abatement, the first being as follows:
"Comes this defendant, and for his plea in abatement says that prior to the time this warrant and affidavit issued against his he was arrested, tried, and convicted under a charge of the same identical offense as charged herein, he was the same the identical defendant in that same said charge, that the same the identical facts were the same as here relied on in this same case, which said trial and said charge was had and did take place in the recorder's court of the city Bessemer, Jefferson county, the state of Alabama, which said court had and took jurisdiction of both the subject-matter and of the defendant and of the same the identical case as made and the identical facts as set out in this affidavit and warrant, from which said conviction in said recorder's court this defendant appealed said case, and which is now pending before this honorable court, which is the same the identical case as made and as now being prosecuted by this same warrant and affidavit in this case; that the said arrest, said conviction, said trial, and said appeal all took place and had been had and done prior to the time of making this affidavit and this warrant; therefore this defendant prays that this suit abate, and be hence dismissed from this honorable court."
Granting that both cases were one and the same and both charged a violation of the same state law, they were at the time of this trial both pending and undisposed of in the same court and before the same judge; the one instituted in that court by the state and the other brought there by the appeal of the defendant thereby constituting a waiver of any jeopardy by reason of the original trial of defendant before the recorder. Both were pending for trial on the merits, and the state could elect as to which to try, and if both were charges brought by the state, as alleged in the plea, and were the same, the conviction in one would be a bar to the other, but the plea is not good in abatement, and was subject to the demurrer. Gibson v. State, 15 Ala. App. 12, 72 So. 569; Bell v. State,115 Ala. 25, 22 So. 526. The case of Sherrod v. State, 197 Ala. 286,72 So. 540, presents a case of conflict in jurisdiction, which is not at all the case here.
Plea B is faulty also. Among other objections it does not allege the pendency of the cause in another court of competent jurisdiction.
It having been shown that a quantity of whisky was found in the back room of defendant's place of business, the front room opening on the street being used for a barber shop and the back room for a bedroom, it was competent for the state to prove that along about the time the whisky was found drunken people were observed in and around the defendant's barber shop, upon the well-known principle, as declared in Holy Writ, "Where the carcass is, there will the eagles be gathered together."
The answer of the witness Williams, "Yes, sir, I have seen and arrested lots of niggers right on the corner of Fifth avenue and Nineteen street," while illegal, was not responsive to any question asked, and, no motion having been made to exclude this answer, the point is waived.
The testimony of Susie Harris as to what she said to a third person was properly excluded, as being irrelevant.
The other exceptions to rulings of the court on questions of evidence were clearly without merit.
The excerpts from the remarks of the solicitor were within the bounds of legitimate argument, and therefore the refusal of the court to exclude them was not error.
Counsel for defendant should not make use of the discretion of the court as fixed by law, as to punishment to be inflicted on conviction for crime, as an argument to the jury to justify any action they might consider just. The jury has its duty and the court likewise, the one not dependent upon the other.
Charge 1, being the general affirmative charge, was properly refused. Charge 2 was the general charge as to count 1, and *Page 411 as the defendant was acquitted on that charge, its refusal was without injury, and charge 3 is in the same category.
There was evidence tending to prove the state's case as to count 2, and hence the refusal of charges 4 and 5 was without error.
The possession of prohibited liquor, without more, is now a violation of law, and hence charge 6 was properly refused.
Charge 7 was properly refused. If the defendant knowingly permitted Red to deposit the whisky in his room he would be equally guilty with Red of having it in his possession; the charge failed to negative this fact.
We find no error in the record, and the judgment is affirmed.
Affirmed.