The defendant ivas indicted for an assault with intent to niurder and was convicted of an assault and battery, whereupon he moved in arrest of judgment, setting up as grounds facts relied upon as showing former jeopardy.
The facts set up as grounds for the motion are without contradiction and show' that, prior to the finding of the indictment upon which he was tried, the defendant had a hearing before the county judge on an affidavit charging him with an assault with intent to murder and' was bound over under bond to await the action of the grand jury. The offense charged in the indictment and the affidavit grew out of the same transaction, and, the jury having found the defendant guilty of an assault and battery (a misdemeanor), it is urged that, as the county judge had final jurisdiction to try and determine misdemeanor cases on the merits, he had no jurisdiction to bind the defendant over to answer the charge against him, and that, as it ivas the duty of the county judge to try and render final judgment in the case, the defendant has been in jeopardy.
In the first place, it is an answer to this contention that former jeopardy must be specially pleaded (Mooring v. State, 129 Ala. 66, 29 South. 664; DeArman v. State, 77 Ala. 10); and, in the second place, the charge *115against the defendant in the affidavit was one denounced as a felony in which the county judge only had jurisdiction to sit as a committing magistrate, and was not a court of competent jurisdiction to try and determine on its merits to a final conclusion the charge preferred — a felony, of which it had no final jurisdiction. It is the charge that determines the jurisdiction of the court. The cases cited and quoted from by appellant (State v. Blevins, 134 Ala. 213, 32 South. 637, 92 Am. St. Rep. 22, and Ex parte Pruitt & Harper, 99 Ala. 225, 13 South. 317) but tend to illustrate what we have said. The affidavits or complaints upon which the defendants were tried in those cases charged offenses that were misdemeanors which the judge or magistrate had jurisdiction to try and render final judgments in.
No attempt is shown to have been made to subdivide or split up the crime charged against the defendant, and prosecute him for different crimes based on the same criminal act, as in the case of Moore v. State, 71 Ala. 307, cited by the appellant. On the contrary, the state is shown to have consistently prosecuted the defendant for the greater offense. The county judge bound the defendant over to answer that charge, he was indicted and tried on it, and the fact that the jury acquitted him of the greater offense, with which he was charged, and found him guilty of the lesser (a misdemeanor), of' which the county judge had jurisdiction, does not carry with it as a result that he has been placed in jeopardy the second time for the lesser, for as to that charge he had never been in legal jeopardy — had not before been put upon his trial on that issue before a court of competent jurisdiction entitling him to a finding of guilt or innocence.
The' question asked the state’s witness Marvin Shunbett by defendant’s counsel, “If he needed his gun with. *116him' on that occasion, to move the cotton ont of tbe warehouse,” is clearly objectionable; but no ruling of the court is shown to have been made on the state’s objection. It is only shown that “counsel for the state objected to said question and defendant excepted.” Whether or not the assaulted party, a short time before the difficulty, made inquiries of an unnamed negro and the defendant’s witness Bud Hamby, as to whether a Mr. Graham, the father of the defendant,- was in his store, and if he was busy, was not relevant to the issues before the court, and the exclusion of that testimony would not authorize a reversal of the case. Circumstances. which do not directly tend to prove or disprove the matters in issue are not admissible. — McCormack v. State, 102 Ala. 156, 161, 15 South. 438.
We find no reversible error in the record, and the judgment appealed from will be affirmed.
Affirmed.