Warrick v. State

WALKER, P. J.

— In justification of the action of the court in admitting in evidence the copy of the stub of an internal revenue license and tax stamp' authorizing the defendant to engage in the business of a retail liquor dealer, and the accompanying certificate authenticating it, no more is deemed necessary than to refer to what was said in the opinions rendered in the cases of Woodward v. State, 5 Ala. App. 202, 59 South. 688, and Strange v. State, 5 Ala. App. 164, 59 South. 691. We are not moved to depart from those rulings by what has been said in the argument of the counsel for the appellant in criticism of the correctness of the conclusions there announced.

In connection with the evidence afforded by the fact of defendant’s paying for such a license for the place and period of time involved in the charge made against him' (Acts of Ala. Special Session 1909, pp. 63, 84, § 22%), and with the further evidence tending to prove that his place of business within such time had the odor of a barroom, it was permissible to prove that beverages sold by him had the color of whisky or of beer.— Strange v. State, 5 Ala. App. 164, 59 South. 691.

The evidence introduced by the state had a tendency to prove the defendant’s guilt of some of the offenses charged in the alternative in the first count of the indictment. Under that count he could be convicted of only one of those offenses-. It was his right, before going into his defense on the evidence, to require an election by the state of the offense for which a conviction under that count would be sought, and the court was in error in overruling his motion made to this end. — Moss v. State, 3 Ala. App. 189, 58 South. 62.

After the solicitor had stated that the state would ask a conviction of the defendant under the second count of the indictment for maintaining an unlawful drinking place during the month of October, 1911, prior to October 27th, the defendant moved the court to require the solicitor to state and elect for what day during that month the state would prosecute the defendant, and ask a conviction of him under the second count of the indictment. That motion was properly overruled, as the offense charged in that count is one that may consist of, and be evidenced by a series of acts or a continuous course of conduct extending over a period of more than a single day. — Treadwell v. State, 168 Ala. 96, 53 South. 290 ; Carl v. State, 125 Ala. 89, 104, 28 South. 505; Hamilton v. State, 153 Ala. 63, 44 South. 968.

Reversed and remanded.