Brown v. State

The defendant in this case was convicted of selling liquor in violation of law, and from the judgment of conviction he appeals.

On the trial of the case the defendant filed a motion to strike the indictment, motion to quash, and pleas in abatement, all of which attack the organization of the court and the validity of the indictment. These questions have been passed upon by this court adversely to the defendant's contention. Ex parte Brown, 15 Ala. App. 210, 72 So. 772; White v. State,15 Ala. App. 197, 72 So. 771; Ogles v. State, 15 Ala. App. 111,72 So. 598; Dock McDaniel v. State, ante, p. 28,75 So. 173.

The defendant contends that section 32 of the liquor law of 1915 (Laws 1915, p. 32), providing for a jury by a demand therefor as required, does not apply to indictments, but only applies where the prosecution is begun by affidavit. We cannot agree with this contention. The statute is so framed as to preserve to the defendant the right of trial by jury; but, in order to have this right, the defendant must demand a jury in the way, manner, and at the time prescribed; and we therefore hold that the section is alike applicable to prosecutions begun by indictment and by affidavit.

The court, over the objection of defendant, permitted Sizemore and Murphree, witnesses for the state, to testify to certain sales of liquor to them by the defendant, but afterward excluded this testimony. If this was error, it was cured by the court's announcement afterward that the testimony was excluded and would not be considered. Sanders v. State, 181 Ala. 35,61 So. 336; Smith v. State, 183 Ala. 10, 62 So. 864.

The defendant assigns as error the refusal of the court to grant a postponement of the case, so as to allow the defendant time to summons and get into court his son and wife to rebut the testimony of the state's witnesses. Matters of this nature address themselves to the sound discretion of the court; and, unless there is an abuse of this discretion, the appellate court will not interfere. The facts in this case do not disclose any such abuse.

There is no error in the record, and the judgment of the lower court is affirmed.

Affirmed.