The act approved August 25, 1909, entitled “An act to farther suppress the evils of intemperance,” etc. (Acts Special Session 1909, p. 63), contains a number of provisions which are made generally applicable to prosecutions for violations of the’state’s prohibitive liquor laws, and that act (section 38) expressly repeals all laws and parts of laws, general, local, and special, in conflict with its provisions. One of the provisions of that act (section 32) is a specification of the time and manner of the defendant’s making a demand for a trial by jury when he is prosecuted in a court in which jury trials are provided for. As to prosecutions for violation of liquor laws, that provision must be regarded ás superseding a different and inconsistent method for a defendant’s demanding a trial by jury which is applicable generally in the court in which the prosecution is pending. As to such prosecutions, a defendant’s right to demand a trial by jury is governed by the provision on the subject of the general law above referred to, and not by a provision on that subject applicable in other classes of cases in the court in which the prosecution is pending, such as the provision in that regard Avhich is contained in section 5 .of the act creating the city court of Andalusia. Local Acts 1907, p. 329. The defendant not having demanded a trial by jury within the time allowed for that purpose by the general law which was applicable, the court Avas not in error in adjudging that he had waived the right to a trial by jury.
It sufficiently appears from the recitals of the bill of exceptions that the defendant had the benefit in the trial of offering evidence in support of his plea of for*192mer jeopardy, based upon an alleged previous prosecution before the recorder of Florala, and that the replication filed to that plea was treated as a joinder of issue upon it. Such being the fact, the defendant could not have been prejudiced by the action of the court in overruling his motion to strike the replication. The evidence offered in support of that plea was not such as to require a finding that its averments were proved.
Under the affidavit in this case, it was permissible for the prosecution to offer evidence of more than one sale of liquor by the defendant.—Howle v. State, 1 Ala. App. 228, 56 South. 37. The affidavit, charging that the defendant “sold, offered for sale, kept for sale, or otherwise disposed of prohibited liquor, contrary to law,” etc., was in the form authorized by the statute. Acts Special Session 1909, p. 63, § 29%. It- contained but a single count or charge, though the charge made was in the alternative. Under such a charge, there cannot be a conviction of more than one offense. In such case tlie defendant, after the introduction by the prosecution of evidence tending to show his guilt of several separate and distinct offenses embraced in the charge, has the right, before going into his defense on the evidence, to require the solicitor to state and elect for which offense he will prosecute.—Untreinor v. State, 146 Ala. 133, 41 South. 170; Woollen & Thornton on Intoxicating Liquors, § 950.
The provision of the statute (Acts Special Session 1909, p. 63, § 30) that “indictments, informations, complaints or affidavits for any violation of this statute, or any provision thereof, or any other statute of the state for the suppression of the evils of intemperance, may set out several charges in separate counts, and the "accused may be convicted and punished upon each one ás upon separate informations, indictments, complaints, *193or affidavits, and judgment shall be rendered on each count under which there is a finding of guilty,” does not authorize a conviction of more than one offense, under a single charge made in the alternative, such as that contained in the affidavit in the present case; nor is there anything in that statute to deprive a defendant in such a case of the right to require the prosecution to elect on which of the several acts of which it has offered evidence it will rely for a conviction. In the present case, the state having offered evidence as to several sales of whiskey made by the defendant at different times, he ivas entitled, on motion, to require the state to make an election; and the court was in error in overruling his motion to this effect.
Reversed and remanded.