
    (125 So. 200)
    MATTHEWS v. STATE.
    (1 Div. 857.)
    Court of Appeals of Alabama.
    Dec. 17, 1929.
    Hybart & Hare, of Monroeville, for appellant.
    Charlie C. McCall, Atty. Gen., for the State.
   BRJGKEN, P. J.

From the record it nowhere appears that a demand in writing, or otherwise, for a jury trial had been made by the defendant. Upon this being ascertained by the court, the judge of the court properly proceeded to try the defendant without a jury, as he was charged with the commission of a misdemeanor. Section 8598, Code 1923. The state is without authority to waive demand by defendant for a jury trial; the insistence of appellant to the contrary cannot prevail.

Upon the trial, the evidence was in conflict, and therefore presented a question of fact for the decision of the court. -There was evidence that tended to show the accused was found in possession of intoxicating beer. His explanation of his possession and the bona fides thereof was for the court. The exceptions reserved to the court’s rulings upon the trial are without merit. The motion for a new trial was properly overruled.

Affirmed.  