Hendrix v. State

65 So. 682, 11 Ala. App. 207

Opinion

THOMAS, J.

The evidence for the state tended to show that the defendant sold the state’s witness Nelson Dubose a pint of whisky on the streets of Clayton in the county of the prosecution, ‘ on a Saturday, but what month and year, and whether before or after the finding of the indictment, the bill of exceptions, which purports to set out all the evidence, fails anywhere to disclose.

It* is incumbent on the state to prove that the offense was committed within 12 months before the finding of the indictment. — Code, § 7139, and cases there cited. Failing therein, as it did here, the defendant was entitled to the affirmative charge. — Doss v. State, 7 Ala. App. 121, 61 South. 478. However, rule 35 of circuit court rules, adopted by our Supreme Court on June 23, 1913, is applicable here. It provides, among other things, that:

“Whenever the general charge is requested, predicated on the failure of the proof as to time, venue,'or any other point not involving a substantive right of recovery or defense, or because of some immaterial omission in the evidence of the plaintiff or defendant, the trial court will not be put in error for refusing said charge, unless it appears upon appeal that the point upon which it was asked was brought to the attention of the trial court before the argument of the case was concluded.”

It does not appear from the record here that the point upon which the charge was asked was brought to the attention of the.trial court, as required by the rule.

The judgment of conviction is consequently affirmed.

Affirmed.