State v. Ware

¶11. Waiving the consideration, whether the first question made in this case, is presented by a proper bill of exceptions, or whether it is reserved as novel and difficult, we think if it was so presented, there is nothing-in it; first, because if the venue was changed irregularly, *816and without* the consent of the defendant, his mode to revise the erroneous action of the court in this particular, is by mandamus — and, secondly, because the whole subject of a change of venue is within the discretion of the circuit court, and the exercise of that discretion is not reviseable. [Brookshear v. The State, 2 Ala. Rep. 303.] The court judges of the sufficiency and existence of the reasons assigned for the change of venue, and in like manner must judge whether the same, or other sufficient reasons exist in relation to other of the adjoining counties. If the construction of the statute was otherwise, the effect would be to allow the prisoner to select the county of trial, after a change of venue, whenever his conscience is sufficiently pliant to assert that such counties were .subject to the exceptions assigned against that where the indictment is found. We are clear the statute invests the circuit court with the discretion to judge, not only the sufficiency of the reasons set out for the change of venue, but also whether these, or other reasons, extend to other counties.

¶22. With respect to the refusal to charge as asked by the defendant, we think there is no error. The allegation in the indictment, is the usual and formal compliance with the rule which requires time and place to be averred in relation to every material and traversable fact. The intention to convert to the use of the prisoner in the particular county is not an essential ingredient in the crime of larceny; but if it was, is sufficiently shown by the intention to convert generally. Whenever the averment, unnecessarily introduced by the pleader, is a matter which the defendant in any manner can put in issue, then the proof must conform to it, but an averment wholly immaterial, and which the defendant cannot, by plea or otherwise, put in issue, need not be proved. This is the sensible rule, deducible from all the authorities, and the averment in this -indictment not falling within it, there is no error in the omission to prove that the defendant intended to convert the slaves in Talladega county. [Chitty’s Pl. 223, and cases there cited.] Judgment affirmed.