Herring v. State , 16 Ala. App. 98 ( 1917 )

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 indictment is not subject to demurrer; but when the evidence is all in for the state, and it discloses the fact that two or more offenses have been proven, the state will be required to elect; or, failing to do so, the indictment will be quashed. This on the well-defined ground that in such a case it would be necessary to offer proof of two independent transactions, thus producing confusion in the minds of the jurors. Thomas v. State, supra. But where there is but one transaction proven, and the defendant is only called upon to meet the proof as to one set of facts which may relate to each allegation in the indictment, the reason for the rule disappears and the rule with it.

The doctrine of election has a field of operation for the protection of defendants in their substantial rights and protects them from being prosecuted for more than one offense in the same count of an indictment; but they must not be permitted to use a shadow with which to invoke a technicality, and thereby escape the just punishment for crime. In the Brooms Case, 72 So. 691,¹ and 73 So. 35,² the judge writing the opinion correctly stated the rule of law, when applied to facts tending to prove two or more offenses; but the Brooms Case is misleading, in that it states the broad rule, without limit as to a given status, as indicated by the majority opinion on review. The court did not err in overruling the defendant's motion for an election. Only one act was testified to, only one witness examined by the state, and it appears from the record that the defendant readily and promptly produced witnesses to contradict the state's evidence.

The above does not apply to violations of the prohibition laws where offenses are charged in separate counts.

We find no error in the record, and the judgment is affirmed.

Affirmed.

¹ 15 Ala. App. 118.

² 197 Ala. 419.