Sapp v. State , 2 Ala. App. 190 ( 1911 )

PER CURIAM.

The affidavit, the foundation of this prosecution, is not objectionable in averment as to the time of the offense charged. The time alleged is that it was within 12 months of the making of the affidavit and since the 1st day of September, 1909. The only reasonable construction that can be put on this statement is that the offense charged was committed since the 1st day of September, 1909, and necessarily within 12 months of the making of the affidavit, which was made May 10, 1910. The objection to the affidavit in this respect is wholly without merit.

The objection to the warrant on the ground that it was made returnable before the judge, instead of the court, has already been considered by the Supreme Court and determined adversely to the present contention of appellant in Redd v. State, 167 Ala. 96, 52 South. 886, aud Carnley v. State, 162 Ala. 94, 50 South. 362.

The constitutionality of the prohibition act approved August 25, 1909 (Laws 1909 [Sp. Sess.] p. 63), under which this prosecution was had, has been passed upon by the Supreme Court in the case of Toole v. State, 170 Ala, 41, 54 South. 194, upholding the statute.

There was no error in sustaining the state’s objection, to the question asked the state’s witness Chew on cross-examination as to who paid S'hehan to come and work up the cases. Shehan did not testify in the case, nor was there any evidence that he had been paid. The evidence sought was entirely irrelevant.

As to how many other warrants were sworn out as a result of the visit of the witness Chew to Bessemer on the particular occasion, and at how many other places the witness purchased whisky, was immaterial to the issues in the case, and the trial court properly sustained the state’s objection to the questions.

The application for a continuance on account of the absence of one of defendant’s witnesses was a matter addressed to the discretion of the court. It appears that the witness was absent at a previous call of the case, and the court then notified the defendant that he could take compulsory process, and that without it the case would not be again continued because of the absence of the witness. No attachment was asked for .by the defendant. We fail to see that there was any abuse of discretion in the action taken by the court.

Moreover, the bill of exceptions states that the exception reserved by the defendant was to the refusal of the court to require the state to be put upon a showing of the defendant as to the absent witness, and not for a refusal to grant a continuance. We know of no law requiring a party to admit a showing as to what an absent witness would testify.

Neither did the court abuse its discretion in refusing to stop the trial of the case, after having been entered upon, to allow the defendant to confer with his witnesses. So far as the record shows, the defendant had had ample time for this before entering upon the trial.

The evidence showed that the sale of the liquor was made within the city of Bessemer. This was sufficient evidence of venue. We judicially know that the territory embraced within the municipality of Bessemer is within the jurisdiction of the city court of Bessemer, in which the defendant was tried.

Charge 8 requested by the defendant was faulty in several respects. It was argumentative, and for this reason alone properly refused.

Charge 10 was abstract. There was no evidence that one of two different persons committed the offense charged. Charge A was likewise abstract. There was no evidence of any witness being an accomplice.

The portion of the oral charge excepted to was free from error. See Baiey v. State, 158 Ala. 18, 48 South. 498

There ivas no error in overruling the motion to quash the jury. A struck jury was authorized by the statute. —Section 82 of an act approved August 31, 1909. General and Local Laws Special Session 1909, p. 305. That part of the act providing for struck juries in trials of misdemeanors is unambiguous, and calls for no construction. The court in the present case followed the provisions of the statute in obtaining the jury.

No error appearing in the record, the judgment appealed from will be affirmed.

Affirmed.

Note. — The above opinion was prepared by Mr. Chief Justice Dowdell of the Supreme Court before the transfer of the case to this court, and is adopted by this court.