Jackson v. State

95 Ala. 17 | Ala. | 1891

Per Curiam.

The only question presented by the rulings of the lower court is, whether the State made an election to prosecute for one act, and afterwards proceeded to elicit evidence concerning another. The beneficent purpose of the rule which requires an election is, that the defendant shall not be prejudiced in the minds of the jury by the introduction of evidence of offenses for which he is not on trial. The term elect implies a knowledge of facts which go to make up two or more offenses. And while a solicitor may, by his own acts and questions, involuntarily effect an election; yet, to hold him to have elected to proceed for a certain offense, he must have learned enough to enable him to individualize the transaction, and then pursue his inquiry with a view of learning the details and particulars of the act or transaction thus individualized. To hold him to an election without going this far, would, in many cases, amount to a denial of justice. — Peacher v. State, 61 Ala. 22; Smith v. State, 52 Ala. 384; Hughes v. State, 35 Ala. 351; Cochran v. State, 30 Ala. 542; Elam v. State, 26 Ala. 48.

Under the rule laid down, we hold that the solicitor had not elected to prosecute for tbe shooting which took place on Friday. There is nothing in the answers of the witness to questions asked, which call for the particulars or details of that shooting. We discover no error in the record.

Affirmed.