Curry v. State , 120 Ala. 366 ( 1898 )

McOLELLAN, C. J.

The special statute establishing the city court of Talladega, etc., etc., as amended in 1895, provides that petit jurors for said court shall be drawn in the same manner as was or might .thereafter be provided for. the drawing of such jurors for the circuit court of Talladega county.—Acts, 1894-95, p. 1221. The drawing of such jurors of said-circuit court is provided for by the Code. The petit jury which tried this case was drawn in consonance with section 4998 of the Code for a week of the city court, for which no jury had been drawn by the jury commissioners; and the motion to quash the venire because not drawn by the commissioners, etc., etc., was properly overruled.

The fact that there was no evidence of a battery committed by the defendant upon the person of Frank Noble did not appear of record in the court below. It was, therefore, not matter for motion in arrest of judgment,- and that motion was well denied.

It was proper, however, for a motion for a new trial; but, conceding that upon it the city court should have granted a new trial, its action in refusing it is not revisable by this court.

There is no merit in the theory advanced in the court below that a battery is not embraced in an indictment charging an assault with intent to murder.—Jones v. State, 79 Ala. 23.

Affirmed.