Howze v. StateHowze v. State
- Reporters:
- , ,
- Before:
- Bricken
The affidavit up‘on which the defendant was tried and convicted for viоlation of the prohibition law сontained one count, charging in the usual form that the defendant “sold, offered for sale, kept fоr sale, or otherwise disposеd of spirituous, vin‘ous, or malt liquors.” After thе state had proved a sale, the trial judge permitted the state to introduce evidence, оver the objection of the dеfendanty 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 altеrnative averment of the cоmplaint. The court’s ruling in this connection was free from error. Barеfield 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 fоr the state to introduce evidеnce 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 transactiоn shown by the evidence the state relied for a conviction. In the instant case, the defendant was accorded and exerсised that right, and the state thereuрon elected to pr‘osеcute for the alleged salе at the home of the defendаnt. ’
*77 After an examination of the еntire record in this case, therе 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.