Howze v. State

BRICKEN, J. The affidavit up'on which the defendant was tried and convicted for violation of the prohibition law contained one count, charging in the usual form that the defendant “sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vin'ous, or malt liquors.” After the state had proved a sale, the trial judge permitted the state to introduce evidence, over the objection of the defendanty of possession ’of whisky at a different time and place. The only question presented for review in this case is whether the court erred in permitting the state to prbve more than one alternative averment of the complaint. The court’s ruling in this connection was free from error. Barefield v. State, 72 South. 293; 1 Brooms v. State, 72 South. 691. 2 There can he but one conviction under a complaint containing only one count, irrespective of the number of offenses charged therein in the alternative. .But it is permissible for the state to introduce evidence in proof of each of the alternative offenses charged iri the complaint, whereupon the defendant has the right, upon motion, to require the state to elect and thereby ascertain on which transaction shown by the evidence the state relied for a conviction. In the instant case, the defendant was accorded and exercised that right, and the state thereupon elected to pr'osecute for the alleged sale at the home of the defendant. ' *77 After an examination of the entire record in this case, there appears no error prejudicial to the substantial rights of the defendant, and therefore the judgment of the lower court is affirmed. Moss v. State, 3 Ala. App. 189, 58 South. 62; Barefield v. State, 14 Ala. App. 638, 72 South. 293; Brooms v. State, 15 Ala. App. 118, 72 South. 691. Affirmed. Footnotes [1] 14 Ala. App. 638. [2] 15 Ala. App. 118.