Untreiner v. State

• Decision Date: 10 May 1906
• Citation: 146 Ala. 133,41 So. 170
• Parties: UNTREINER v. STATE.
• Court: Alabama Supreme Court

41 So. 170

146 Ala. 133

UNTREINER v. STATE.

Supreme Court of Alabama

May 10, 1906

Appeal from Circuit Court, Monroe County; C.J. Torrey, Special Judge.

"To be officially reported."

L Untreiner was convicted of violation of the liquor law, and appeals. Affirmed.

The indictment in this case charges the defendant in the first count with selling spirituous, vinous, or malt liquors without license and contrary to law. The second count charges that the defendant sold spirituous, vinous, or malt liquors or intoxicating bitters, in quantities less than one quart without license and contrary to law. The third count charges the defendant with selling spirituous, vinous, or malt liquors, which were drunk on or about the premises, without a license and contrary to law. There was a judgment of conviction, and motion was made in arrest of judgment for the reasons set out in the opinion. Several witnesses were introduced by the state, and were permitted to testify each to separate purchasers of beer and whisky, over the objection of the defendant.

Barnett & Bugg and J. M. Miller, for appellant.

Massey Wilson, Atty. Gen., for the State.

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 constituted separate and distinct offenses. McIntosh v. State, 140 Ala. 137, 37 So. 223, and cases there cited. And when the indictment contains only one count, care should be observed that the probative force of such testimony be 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 each case the defendant, upon 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, the 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 So. 213; Lowe v. State, 134 Ala. 15, 32 So. 273; Crittenden v. State, 134 Ala. 145, 32 So 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 So. 472; Elam v. State, 26 Ala. 48; Wooster v. State, supra. Applying this principle to the facts...