Chandler v. State
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Opinion of the Court
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EVANS,J.
— The motion to quash the AAmrrant, made by the defendant in the court below, cannot be here considered, for the reason that neither the motion, nor ruling of the court thereon, appear in the bill of excep tions. — Jones v. City of Anniston, 138 Ala. 199 , 35 South. 112 . Indeed, the record does not show that the court ruled on the motion.
The affidavit and Avarrant upon Avhich defendant Avas tried were of date May 28, 1909. The case urns tried by the judgment entry, on June 8, 1909. J. J. Burnett Avas the only witness for the state, and testified on direct examination that he kneAV the defendant, and had known him since the fall of 1908; that he had bought Avhisky from the defendant since Christmas of 1908; that he bought from him a quart of corn whisky,, and paid him $1.25 therefor. On cross-examination he testified that-he bought it about April or May. He also testified on cross-examination that he had bought from him several times, and that one time he paid him in checks issued by the Pratt Consolidated Coal Company. The defendant then “moved the court to exclude the testimony,” first, “because the state had failed to make out its case; *113 second, because the thing paid for the quart of whisky testified to by witness was shown on its face to be of no value; third, because the solicitor had not elected or proved any particular time of sale made by defendant; fourth, because the testimony was irrelevant, .immaterial, and incompetent.” The court overruled the motion and defendant duly excepted.
The motion to exclude the evidence was without merit. The evidence for the state tended to show every material element of the offense charged in the affidavit. The fact that the witness stated that he could not remember the exact date of the sale was immaterial as a matter of law, since the testimony tended to show that it was before the commencement of the prosecution and within a time not barred by the statute of limitations. The only sale proved by the state was the quart of corn whisky for which witness paid defendant $1.25. The fact that he testified to other sales of whisky transactions upon cross-examination could not put the state to any election as it had already elected.
There being no error in the rulings of the court below, the judgment thereof is affirmed.
Affirmed.
Dowdell, O. J., and Anderson and Sayre, JJ., concur.
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