Horton v. State , 17 Ala. App. 189 ( 1919 )

On Rehearing. The case was tried by the court without the intervention of a jury. There was ample evidence to sustain the finding of the court. We find no error in the record, and the judgment is affirmed.

Affirmed.

On Rehearing. No brief having come to the court on the original submission of this case, on the authority of Simmons v. State, ante, p. 153, 82 So. 643, no opinion was prepared.

On rehearing, counsel for appellant files brief, correctly setting forth the law on the doctrine of election. The state having elected to prosecute the defendant for having possession of prohibited liquors at the time "whisky was found in the woodhouse," would only be entitled to a conviction upon evidence establishing that fact The witness Rigsby testified:

"I found two quarts, and a pint and a quart bottle half full of white corn whisky. The full quarts were red whisky and the pint was red whisky. * * * Bates got the two full quarts, and I got the corn whisky, at the same time in the woodhouse, about 25 feet from Ada's house."

Bates testified that he found two quarts and a pint of whisky in defendant's room at the time Rigsby found the white whisky, the white whisky being in a quart bottle half full. That fixed the time as elected by the state.

Application overruled.