Opinion
8 Div. 663.
June 17, 1919. Rehearing Denied July 21, 1919.
Appeal from Circuit Court, Madison County; Robert C. Brickell, Judge.
Christo Robinson was convicted of violating the prohibition laws and appeals. Reversed and remanded, but afterwards affirmed, in response to the mandate of the Supreme Court. 86 So. 213.
204 Ala. 1.
R.E. Smith and Cooper Cooper, all of Huntsville, for appellant.
The appeal is from the denial of a motion for new trial because the verdict was contrary to the great weight of the evidence. This is authorized by Acts 1915, p. 722. A careful review of the evidence discloses the fact that there was an absence of evidence showing a sale, and hence no basis for the verdict of the jury.
J.Q. Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen., for the State.
There were 11 counts in the indictment, and the state was entitled to be heard on each count. Acts 1915, p. 30. The mere fact that the defendant pleaded not guilty to selling does not show an election. Section 7565, Code 1907. The evidence shows a violation as charged in some of the counts, and the verdict was proper. 14 Ala. App. 638, 72 So. 293; 100 Ala. 131, 14 So. 472; 146 Ala. 133, 41 So. 170.
While the indictment charges in different counts the offense of selling prohibited liquors, and other infractions of the prohibition law, the judgment of the court evinces an election by the state to prosecute for the offense of selling. The recital of this judgment is: "Comes the state of Alabama, by its solicitor, and also comes the defendant, in his own proper person and by his attorney, and the defendant being arraigned in open court upon an indictment for the offense of selling liquor, and for his plea thereto says he is not guilty as charged in the said indictment. Thereupon comes a jury of good and lawful men, to wit, W.M. Preston and eleven others, who, being impaneled and sworn according to law, upon their oaths do say: We, the jury, find the defendant guilty," etc. While the evidence offered tends to show that the defendant was guilty of violating other provisions of the statute, there is no evidence that he was guilty of selling liquors in violation of the statute, and the defendant was entitled to the affirmative charge as to the only offense for which he was on trial. Reversed and remanded on original hearing, but afterwards (October 29, 1920) affirmed in response to the mandate of the Supreme Court in Ex parte State, in re Christo Robinson, 204 Ala. 1, 86 So. 213.