Wilson v. State , 136 Ala. 114 ( 1902 )

DOWDELL, J.

-The defendant Wilson was indicted in the circuit court of Coffee county, for selling spirituous, vinous or malt liquors without license and contrary to law. The indictment was transferred to the county court of Coffee under the provision of the act creating that court (Acts, 1900-1901, p. 861), where be was tried and convicted.

It is urged by the defendant that the above act creating the county court of Coffee is unconstitutional because it contains a clause,- which provides that the judge of said court shall be a person “learned in the law,” the contention being that, it is offensive bo section 2 of Article 1 of the Constitution of 1875, the act having been passed while the Constitution of 1875 was of force. The case of Kentz v. City of Mobile, 120 Ala. 623, we think is conclusive of the question here presented, and adverse to the contention of the appellant. What was there said in reference to the constitutionality of the act being affected by the provision of the clause contained in that act relating to the qualifications of the recorder, is applicable here. The provision contained in the act before us, relating to the qualification of the judge of the court, may be rejected and still leave the act creating the court a harmonious whole, complete in itself.

The indictment contained one count, and was in the form prescribed in the Code. Under it the proof of one act of illegal selling Avas sufficient to Avarrant a conviction. The State introduced one Rhodes as a Avitness, and proved by him that in the early part of January, 1901, that being AAdthin the, time covered by the indictment, Avitness bought from the defendant a pint, of whiskey and for Avhich Avitness paid defendant, In this Hie State made an election, and the court was in error in permitting the solicitor for the State, against .the objection of the defendant, 'to introduce evidence shoAving other and' distinct acts of selling at other and different times. As stated above, one illicit sale constituted a Adolation of the Iuav, and evidence of other sales was irrevelant and inadmissible. It is altogether different from that class of offenses Avhere continuous acts constitute one offense. — Cost v. State, 96 Ala. 60; O’Brien v. State, 91 Ala. 25; Williams v. State, 77 Ala. 53; McCullough v. State, 63 Ala. 75; Peacher v. State, 61 Ala. 22; McPherson v. State, 54 Ala. 221; Smith v. State, 52 Ala. 384 ; Elam v. State, 26 Ala. 48.

Rulings on motion to strike pleadings 'are reviewable on appeal only when presented by a bill of exceptions. Cottingham v. Greely Grocery Co., 129 Ala. 200; Holley v. Coffee, 123 Ala. 406; Randall v. Wadsworth, 130 Ala. 633.

For the error pointed out the judgment of the court below will be reversed and the cause remanded.