Davidson v. State

59 So. 687 | Ala. Ct. App. | 1912

PELHAM, J. —

The case Avas tried before the court Avithout a jury; the defendant being charged Avith an assault with' a Aveapon. The contention is made that the venue was not proven. This question, hoAvever, is not shOAvn to have been raised in any Avay that would authorize us to consider the proof in relation to that matter. The bill of exceptions on this point shows that after the court had ascertained the guilt of the defendant, assessed a fine, and rendered a judgment of guilty, “thereupon” the defendant excepted, to the finding and judgment. No point Avas made or objection raised to the sufficiency of the evidence to authorize a finding of the defendant’s guilt thereon until after the finding had been made and the judgment pronounced by the court. An exception to the finding of the trial court on the facts, when sitting in the trial of cases without a jury, may properly raise the question of venue (Thompkins v. State, 1 Ala. App. 258, 55 South. 267); but the record must skoAv that the sufficiency of the evidence to authorize a finding* of guilty Avas challenged before the finding Avas made and judgment entered.

The indictment contained two counts, one count alleging the assault to have been made on one Jim Ware, and the other count alleging* the assault to have been made on Hoss Watkins and Bud Trimble.

On the trial the defendant made a motion to require the state to elect on Avhich .count of the indictment it Avould proceed. The assault Avas shown to be but one •continuous transaction, occurring Avitkin a feAv moments of time, and the tAvo shots fired in rapid succession. An election is required in certain cases to prevent prejudice to the defendant by bringing in evidence of other crimes for Avhicli the defendant is not indicted, and to avoid bolstering up a conviction of the offense .charged by other and different offenses (Smith v. State, 52 Ala. 384) ; but the principle has no application to a case Avkere evidence given is of a single, continuous transaction. — Hamilton v. State, 153 Ala. 63, 44 South. 968; Willis v. State, 134 Ala. 429„ 33 South. 226. The purpose of joining in an indictment tAvo or more counts is to prevent the application of the doctrine of election. (Carleton v. State, 100 Ala. 130, 14 South. 472); and where, out of precaution to meet every aspect of a single offense, an indictment charges distinct crimes, and no attempt is made to convict the accused of disconnected offenses, the state Avill not be compelled to elect. — Butler v. State, 91 Ala. 87, 9 South. 191; Tanner v. State, 92 Ala. 1, 9 South. 613; Upshur v. State, 100 Ala. 2, 14 South. 541.

The record shoAVS the defendant was found guilty and fined only on the first count of the indictment, and no attempt made to convict of two offenses growing out of separate and distinct transactions. — Lucas v. State, 144 Ala. 63, 67, 39 South. 821, 3 L. R. A. (N. S.) 412. We do not think this record presents a case for putting the state to an election of offenses. The demurrers to the indictment, on the ground that the indictment charged separate and distinct offenses in the same indictment, because in different counts it alleged an assault with a weapon on different persons, were properly overruled. — Tanner n. State, 92 Ala. 1, 9 South. 613; Lucas v. State, 144 Ala. 63, 39 South. 821, 3 L. R. A. (N. S.) 412.

The evidence was sufficient to authorize the trial court to find the defendant guilty of the charge preferred; and-it is not for this court to pass upon the weight of the evidence or credibility of. the witnesses. The finding of the trial court on the facts is entitled to the same credit as the verdict of a jury. — Winter-Loeb Grocery Co. v. Mutual Warehouse Co., 4 Ala. App. 431, 58 South. 807, and authorities there cited.

There is no error presented by the record, and the case will he affirmed.

Affirmed.