Untreinor v. State

May 10, 1906
Versions:41 So. 170
146 Ala. 133
1906 Ala. LEXIS 102
TYSON, J.

The testimony of the first witness examined in behalf of the state simply afforded an inference that the beer purchased by him was the property of defendant, and that the sale was made by defendant. The first of these inferences is deducible from the fact that it was bought in defendant’s place of business, and the second that it was bought from another in her presence. Being mere inferences, it was competent for the state, for the purpose of showing ownership of the beer, and that the person making the sale was authoritatively acting for defendant — thus to establish her identity as the person who in reality made the sale of the beer — to prove other sales by her, notwithstanding these latter sales *135constitute separate and distinct offenses. — McIntosh v. State, 140 Ala. 137, 37 South. 223, and cases there cited. And when the indictment contains only one count, care should he observed that the probative force of such testimony he not extended beyond the limits indicated; that it be not used by the state for the purpose of convicting the defendant for these offenses, each being separate and distinct. In such case the defendant, npon such testimony being admitted, has the right to require the solicitor to state and elect for which offense he will prosecute.

But when the indictment contains a number of counts, as this one does, charging several distinct offenses, which may be joined, tlie prosecution has the right to introduce testimony to establish the offense alleged in each count, independent of the rule above declared, and may have a conviction upon each of the counts.; — Wooster v. State, 55 Ala. 217; Covy v. State, 4 Port. 86; Bishop on Crim. Pro. 3452, and cases in note 1; Swanson v. State, 120 Ala. 376, 25 South. 213;Lowe v. State, 134 Ala. 15, 32 South. 273; Crittenden v. State, 134 Ala. 145, 32 South. 273. And when, as here, there are several counts, and evidence is offered tending to prove the separate and distinct offenses as alleged in each, the doctrine of election does not apply until there has been an election by the prosecution under each separate count. — Carleton v. State, 100 Ala. 130, 14 South. 472; Elam v. State, 26 Ala. 48; Wooster v. State, supra. Applying this principle to the facts as shown by the testimony, there was no error committed by tlie trial court in overruling tbe motion to exclude the evidence tending to show other sales of liquor by defendant, and of denying her motion to require tbe stair to elect for which of the offenses it would prosecute. This also disposes of one of the criticisms to that portion of the oral charge excepted to. The other criticism, that the court omitted to instruct the jury as to the defendant’s ownership of the liquors sold, is clearly without nurit. To see that this is true, we need only read the whole of the extract of the charge to which the exception was reserved.

*136The motion in arrest of judgment is predicated upon the unconstitutionality of the local prohibition acts under which the indictment is preferred. Acts 1880-81, p. 169, Acts 1884-5, p% 601. The objection here urged is based upon the fact that the body of each of these acts, the latter being strictly amendatory of the former, contains subjects not expressed in the title, This is undoubtedly true, and the contention is sound; but the extraneous sube juts embodied in each of them may be eliminated without affecting the validity of the act as a whole. In other words, 'after eliminating the extraneous subjects, “keep for sale” and “intoxicating bitters” from the bodies of the acts, the remaining subjects contained in the acts, being in conformity to those expressed in their titles, the acts are valid and complete laws as to those subjects, — Watson v. State, 140 Ala. 134, 37 South. 225; State v. Davis, 130 Ala. 148, 30 South. 344, 89 Am. St. Rep. 23. Neither of the counts charge the defendant with keeping for sale any of the liquors, but each charges a sale of such liquors, and only one of them, the second, charges the sale by her of “intoxicating bitters.” This one, of course, was defective; but no demurrer was interposed to it. So then, we have two good counts to- which the judgment of conviction must be referred. This being true, the motion in arrest of judgment was properly denied. — Grant v. State, (Ala.) 40 South. 80.

Affirmed.

Weakley, C. J., and Simpson and Anderson, JJ., concur.