
    (86 South. 241)
    HORTON v. STATE.
    (8 Div. 662.)
    (Court of Appeals of Alabama.
    June 17, 1919.
    On Rehearing, July 21, 1919.)
    On Rehearing.
    1. Indictment and Information <&wkey;176— State Must Make Proof Accordins to Election.
    The state, having elected to prosecute for having prohibited liquors at the time whisky was found in a certain place, would be entitled to a conviction only on evidence establishing that fact.
    2. Indictment and Information &wkey;>176 — Evidence Held to- Fix Time of Possession as Elected by State.
    Evidence on prosecution for possession of prohibited liquors held to fix the time of possession as elected by the state.
    <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
    Ada Horton was convicted of violating the prohibition law, and appeals.
    'Affirmed.
    Certiorari denied, 204 Ala. 699, 86 South. 926.
    Tennis Tidwell, of Albany, for appellant.
    J. Q. Smith, Atty. Gen., for the State.
   SAMFORD, J.

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 South. 613, 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 wood-house,” 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 com 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.  