Dillard v. State , 152 Ala. 86 ( 1907 )

McCLELLAN, J.

The amendment of the defective original affidavit was properly allowed. — Wright’s Case, 136 Ala. 139, 34 South. 233; Holland’s Case, 139 Ala. 120, 3 5South. 1009. And, as amended, the affidavit sufficiently charged an offense against the local prohibition law applicable to Jefferson county. — Guarrno v. State, 148 Ala. 687, 42 South. 883. Nor was it then subject to any of the demurrers interposed to it.

The general rule in criminal cases is that evidence of another offense than that for which the accused is being tried is not admissible; This rule is subject, to exceptions, and, among them, when the identity of the defendant as the person who committed the act is a controverted issue in the prosecution. — Mitchell’s Case, 140 Ala. 118, 37 South. 76, 103 Am. St. ‘Rep. 17; McIntosh’s Case, 140 Ala. 137, 37 South. 223, and cases therein cited. Of course prior to an election, where such is necessary or is made by the state, to move for conviction of a specific offense, the range of the testimony relating to other offenses need not be limited, though, after election to prosecute for a given act, the evidence, adduced with reference to other offenses may be, on motion, excluded from the jury’s consideration, provided such evidence is. not within the exceptions clearly stated in the authorities. On the retrial of this defendant, which will be necessary, the principles announced can be readily applied to the testimony offered, determining its admissibility.

The affirmative charge for the prosecution should not have , been given. Under the testimony of the witness Harmon it was a question for the jury’s decision whether the sale for which the state elected to prosecute was prior or subsequent to the issuance of the warrant on the original affidavit, to the time of which the amendment had relation back. Of course, no conviction could be had of an offense taking place after the institution of the prosecution. In one view, under Harmon’s testimony, the jury might have, if unhindered, found that the sale was made near Christmas, after the original affidavit was sworn out, and in the other view before that affidavit was made. The affirmative charge took that question from the jury, and so the judgment must be reversed.

It is not necessary to treat other questions presented. Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.