Scrutchings v. State

TYSON, C. J. The indictment contains íavo counts. The first charges a simple assault and battery, and the second an assault and battery with a brick. It was permissible for the prosecution to offer evidence in support [2] of the two distinct offenses charged, and to obtain a conviction upon each of the counts. And, when such evidence is introduced, there is no room for the application of the doctrine of election, which was attempted to be invoked in this case. — Untreiner v. State, 146 Ala. 133, 41 South. 170. It follows, therefore, that the motion to exclude the testimony, offered by the prosecution, of the assault and battery with a brick, was properly overruled, and that the affirmative charge requested by defendant was correctly refused. The judgment of conviction must be affirmed. Affirmed. Haralson, Simpson, and Denson, JJ., concur.