Guarreno v. State

DENSON, J. — The demurrer to the indictment was properly overruled . —Guarreno’s Case, 148 Ala. 637, 42 South. 833. If the objection to the question propounded to witness • Marbut, was meritorious when made, his testimony to the effect that the purchase of liquor made by him of the defendant “was shortly before the finding of the indictment” overcame the point of the objection. The indictment contains three counts, and charges two or more misdemeanors. The prosecution was entitled to introduce evidence to establish the offense alleged in each count. Therefore no ground for the doctrine of election of offenses was presented, and the court did not err in overruling the objection interposed to the testimony of Dennis. —Untreinor’s Case, 146 Ala. 133, 41 South. 170. If the court erred in sustaining the objection to the question propounded to the witness Dr. Schulhofer, the error was cured by the court’s subsequently offering to allow defendant to prove by that witness what ingredients composed the “hop ale,” and to allow the witness to then testify Avhether or not, in his opinion, the ingredients composing the ale Avould produce intoxication. Moreover, this Avitness had testified substantially that the ale sold by defendant was neither spirituous nor vinous liquor, and that it did not contain malt. The court orally charged the jury “that as matter of law, at the time of finding the indictment in this case, Twelfth avenue and Nineteenth street, Bessemer, was not in an incorporated town having police regulations.” An exception, reserved by the defendant, presents this charge for review. The point of this charge is that the court was judicially cognizant of the fact that the place at which the evidence tended to show the sale of the liquor was made was not within the corporate limits of [20] the city of Bessemer. Courts are charged with judicial knowledge of the boundaries of incorporated town and cities, and the proposition asserted in the charge is within this principle. Therefore no error was involved in the giving of the charge. The general affirmative charge, as well as the general charge in respect to count 3 of the indictment, invaded the province of the jury, and both were well refused. The record contains no evidence that the sale was made in an incorporated town or city. Therefore charge 4, in defendant’s series, was abstract, for Avhich reason it was properly refused. No error appearing in the record, the judgment of conviction is affirmed. Affirmed. Tyson, C. J., and Simpson, Anderson, and McClellan, JJ., concur.