
    (129 So. 291)
    TUCKER v. STATE.
    7 Div. 976.
    Supreme Court of Alabama.
    June 19, 1930.
    Riddle & Riddle, of Talladega, for petitioner.
    Charlie C. McCall, Atty. Gen., for the State.
   SAYRE, J.

This court concurs in the ruling of the Court of Appeals to the effect that if defendant belonged to one of the exempt classes mentioned in the act of 1927 (Acts 1927, p. 34), that was defensive matter to be proved by him. But this court does not agree that such defense was necessary to be set up by spe-cial plea. However, the writ applied for will not be granted on that account for the reason that the Court of Appeals appears to have given due consideration to that defense, nor can this court, on consideration of the opinion of the Court of Appeals, say that the court erred in its judgment — that being a question of fact depending upon tbe evidence which this court is not in a position to review.

Writ denied)

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.  