Voss v. State

Sm:ith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for the sale of intoxicating liquor. After proving one sale of intoxicating liquor, the state, over the objection of the appellant, was permitted to prové another and distinct sale of such liquor.

At the close of the evidence, the appellant moved the court to compel the state to elect on which of the sales it would ask a conviction, and it elected to ask for a conviction on the sale first proven.

The indictment alleges that the appellant sold intoxicating liquor, “on the — day of-, A. D., 1925,” and consequently does not bring the case within the provisions of section 1762, Code of 1906 (section 2098, Hemingway’s Code). Evidence of more than one sale, therefore, should not have, been admitted, and the error in so doing was not cured by the election of the state of one of the sales.

Reversed and remanded.