Roe v. City of Tuscaloosa , 12 Ala. App. 614 ( 1914 )

BROWN, J.

The complaint under which the defendant was tried charged several distinct offenses in the alternative, and the evidence was sufficient at least to afford an inference that the defendant had whisky in his possession for an unlawful purpose, as charged in the complaint, and in violation of the city ordinance—Wynn v. State, 11 Ala. App. 182, 65 South. 687; Allison v. State, 1 Ala. App. 206, 55 South. 453. There was therefore no error in refusing the affirmative charge requested by the defendant after the close of all the evidence.

If the defendant had rested his case on the testimony offered by the appellee in chief, he would clearly have been entitled to the affirmative charge, because up to that time the ordinance under which the prosecution was instituted had not been offered in evidence. The ordinance not being a matter of which the court could take judicial notice, its introduction was necessary to sustain the prosecution, but until the defendant rested his case, no duty rested on the trial court to consider the affirmative charge requested by him. In other words, the defendant could not insist on the affirmative charge and yet reserve the right to introduce proof in rebuttal of that offered by the prosecution, in the event the charge was refused. Under these circumstances, there was no error in tbe action of tbe court in refusing to consider tbe giving of tbe affirmative charge requested by the defendant at this stage of tbe case. If there was error in tbe refusal of tbe court to exclude tbe testimony, this error was clearly cured by tbe subsequent introduction of the ordinance before tbe case ivas submitted to . tbe jury.

It was within tbe sound discretion of tbe court to allow the plaintiff to introduce tbe city ordinance after tbe evidence was closed and some of tbe arguments bad been made, and this court will not review this action of tbe trial court.

There was no error in tbe action of the court in overruling tbe appellant’s objection to tbe testimony of the witness Lula May Walton.—Bone v. State, 8 Ala. App. 59, 62 South. 455.

WTe find no error in tbe record, and tbe judgment of tbe county court is affirmed.

Affirmed.