Opinion
8 Div. 960.
March 18, 1930.
Appeal from Circuit Court, Madison County; Paul Speake, Judge.
Joseph T. Sharp was convicted of violating the prohibition law, and he appeals.
Affirmed.
The original affidavit charged that the defendant "did buy, sell, or have in possession illegally, give, barter, exchange, receive, deliver, carry or ship, prohibited liquors, contrary to law," etc.
The solicitor, by leave of court, amended the affidavit by striking out the word "buy."
The judgment entry recites that defendant demurred to the affidavit "for the use of the word 'buy.' Thereupon the State by leave of the court amends complaint by striking out the word 'buy' and defendant objects to amendment. Defendant's objection to amendment is overruled by the court. Defendant moves to strike the amendment, and said motion is overruled by the court, and to the ruling of the court on said motion the defendant then and there duly excepts. Defendant objects to being put on trial on the amended affidavit. Defendant's objection overruled by the court and to the ruling of the court defendant excepts."
Charlie C. McCall, Atty. Gen., and W. P. Cobb, Asst. Atty. Gen., for the State.
There was no error in allowing amendment of the affidavit. Jinright v. State, 220 Ala. 286, 125 So. 606; Lee v. State, ante, p. 403, 126 So. 183.
Under a recent decision of the Supreme Court in the case of Jinright v. State, 125 So. 606, the several objections interposed, by demurrer and otherwise, to the affidavit upon which this appellant was tried and convicted, cannot prevail. Whatever may be the opinion of the writer on the point of decision involved, under the statute (Code 1923, § 7318) the decisions of the Supreme Court shall govern the holdings and decisions of the Court of Appeals; the decision, supra, is conclusive of the question involved.
The objections to going to trial before a jury who had either heard the evidence and observed the trial of this appellant on a former occasion, or had sat upon a case wherein this appellant and a codefendant had been tried and convicted, were not well taken. These matters rested in the sound discretion of the trial court, and, in the absence of a gross abuse of such discretion, the rulings of the trial court will not be disturbed. Sandlin v. State, 19 Ala. App. 583, 99 So. 784; Ex parte Sandlin, 211 Ala. 153, 99 So. 786; Sanders v. State, 22 Ala. App. 358, 116 So. 329.
Upon the trial, the undisputed evidence disclosed that the searching officers found large quantities of prohibited beverages in this appellant's residence, and in testifying in his own behalf he freely admitted that the contraband liquor or beverages belonged to and was made by him. Under the evidence adduced, the jury were fully warranted in the verdict rendered. No ruling of the court to which exception was reserved constituted reversible error. The exception reserved to the oral charge of the court is so clearly without error it needs no discussion.
The record appears regular. The judgment of conviction from which this appeal was taken will stand affirmed.
Affirmed.