Herring v. State
| Decision Date | 15 May 1917 |
| Docket Number | 6 Div. 329 |
| Citation | 16 Ala.App. 98,75 So. 646 |
| Parties | HERRING v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.
Tom Herring was convicted of violating the prohibition law, and he appeals. Affirmed.
The defendant was tried on an affidavit charging a violation of the prohibition law, and from a judgment of conviction he appeals. The affidavit charges that the defendant "manufactured, sold, offered for sale, or otherwise disposed of, prohibited liquors," etc. The testimony for the state by one Clark, its only witness, was that on November 29, 1915, he was a special policeman for the city of Bessemer; that he met Sharp Jones on the street, and Sharp said, "Let's go down to Tom Herring's and get a drink." They went to his restaurant; defendant was behind the counter. They went up to the counter and ordered two drinks of whisky. Defendant took a bottle out of his pocket, poured out two glasses of whisky, and received 30 cents for it. They then drank the whisky. The venue was proven. The defendant and two witnesses denied this statement. At the conclusion of the state's evidence, the defendant moved the court to require the state to elect as to which offense alleged it would prosecute. The court overruled the motion, and after all the evidence was in, rendered a verdict and judgment of guilty, to which exception was reserved.
Thomas T. Huey, of Bessemer, for appellant.
W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.
The court had the witnesses before it, was able to observe their demeanor on the stand, and, holding to the long line of decisions in this state on this point, this court will not disturb the findings on the facts in this case.
Wherever it is manifest, either by the indictment or by the evidence that an attempt is being made to convict the defendant of two or more offenses growing out of separate and distinct transactions, the court will grant a timely motion to require the state to elect, and if the state refused to elect, the indictment will be quashed. Wooster v. State, 55 Ala. 217. But where the joinder is intended, and its effect is to meet the different aspects in which the evidence may present a single transaction, the court ought not to and will not interfere. Mayo v. State, 30 Ala. 32. Section 7151 of the Code was designed to dispense with a multiplicity of counts, permitting one by alternative averment of different offenses to serve the purpose of several. Thomas v. State, 111 Ala. 55, 20 So. 617. When this is done, the...
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Brown v. State, 8 Div. 121
...and is not entitled to require the State to elect on which alternative averment in the complaint it will rely. See also, Herring v. State, 16 Ala.App. 98, 75 So. 646; Jemison v. State, 40 Ala.App. 581, 120 So.2d 748. The motion was properly Appellant next contends that Officer Moseley is an......
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Rueffert v. State
...state to elect on which alternative it intended to seek conviction. See Jemison v. State, 40 Ala.App. 581, 120 So.2d 748; Herring v. State, 16 Ala.App. 98, 75 So. 646. There was a general verdict of According to the evidence defendant's automobile was parked at an apartment building for at ......
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Matson v. State, 7 Div. 261
... ... made to convict the defendant of two or more offenses growing ... out of distinct and separate transactions, the court will ... grant a timely motion to require the State to elect, and if ... they refuse to elect, the indictment will be quashed ... Wooster v. State, 55 Ala. 217; Herring v ... State, 16 Ala.App. 98, 75 So. 646. But where there is ... only one count in an indictment for violation of the ... prohibition law in the alternative following the form laid ... down in the Code as was done in this case, the State will not ... be held to an election until the evidence ... ...
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Breedwell v. State
...was to meet the different aspects in which the evidence may present a single transaction. Mayo v. State, 30 Ala. 32; Herring v. State, 16 Ala.App. 98, 75 So. 646; Flournoy v. State, 251 Ala. 285, 37 So.2d The testimony for the State tended to show that the prosecutrix, Evelyn Virginia Edwar......