
    (116 So. 304)
    McMULLEN v. STATE.
    (8 Div. 612.)
    Court of Appeals of Alabama.
    March 27, 1928.
    Robt. C. Briekell, of Huntsville, for appéllant.
    Charlie C. McCall, Atty. Gen., for the State.
    No brief reached the Reporter.
   BRICKEN, P. J.

Under the provisions of Local Acts 1919, p. 17 (No. 44), approved February 11, 1919, prosecutions of persons charged with misdemeanors, in Madison county, may be begun by affidavit made before the clerk of the circuit of Madison county, and thereupon the jurisdiction of the circuit court of Madison county shall attach, and the case shall proceed to trial and judgment under the same rules and procedure as provided by law in misdemeanor causes.

This prosecution originated under the terms or provisions of the above local statute, the affidavit being made by one R. S. Watson before Carter H. Rice, clerk of the circuit court. Warrant of arrest was issued and made returnable to the circuit court. The specific charge against this appellant was the violation of the prohibition laws of the state by having in his possession prohibited liquors. No objection, by demurrer or otherwise, was interposed to the affidavit, as framed, and, the affidavit not being void upon its face, and if defective only, such defect should have been pointed out by demurrer, and the fact that, one of tfie specific alternative averments in tfie affidavit cfiarged no offense known to tfie law in tfiis state cannot, in tfie present status, avail tfie defendant fiere. Sanders Griffin v. State, ante, p. 369, 115 So. 769 (7 Div. 401).

Upon tfie trial of tfiis ease, in tfie circuit court, and before pleading to the merits of the affidavit upon which tfie trial was had, tfie defendant filed a plea of former conviction and upon tfiis plea the state joined issue. This placed upon tfie defendant the burden of proving tfie special plea interposed by him. Tfie evidence adduced in tfiis connection was without conflict, and under tfie authority of Holland v. State, 21 Ala. App. 520, 109 So. 885; Leon Holland v. State, 215 Ala. 106, 109 So. 886, tfie plea was fully proven and the defendant was entitled to fiis discharge. Tfie court field to tfie contrary and in so doing committed error to a reversal. In tfie Holland Case, supra (certiorari denied by Supreme Court), on tfie question of unlawful possession of whisky, this court, through Sam-ford, J., said:

“If there was whisky in tfie smokehouse, some just below tfie house under a log, and a quart lying in the water under a tree, and all of this was in defendant’s possession at the same time, there was only one possession, * * * and evidence having been admitted tending to prove this no election on the part of the state, was necessary.”

The facts in this 'case being without dispute, and as stated, the defendant having met tfie required burden of proof to sustain his plea, fie was entitled to his discharge. Tfie Constitution provides that no person shall, for tfie same offense, be twice put in jeopardy. It affirmatively appearing that tfiis humane provision of the law was denied to tfiis appellant, and as tfie law imposes upon tfiis court the duty, where error appears, to render such judgment in tfie cause as tfie court below should have rendered (Code 1923, § 8599), tfie judgment of conviction from which tfiis appeal was taken is reversed, and an order fiere entered discharging tfiis appellant from further custody in this proceeding.

Reversed and rendered.  