This prosecution originated in the county court on an affidavit charging that "the offense of violating the prohibition law has been committed by hauling two gallons of whisky along the highway of Calhoun county." On appeal to the circuit court, the solicitor filed an information under the statute (Code 1923, § 4621) charging that said defendant "had in his possession two gallons of whisky." It is insisted that this is a departure, upon which the prosecution will not lie.
It was not necessary or essential for the solicitor to have filed the information in this character of prosecution, but the case on appeal could have proceeded on the original affidavit. Code 1923, § 4646. However, so far as a violation of the prohibition law is concerned, the affidavit simply used words which in effect charge the defendant with being in possession of two gallons of liquor. *Page 342 There is no such departure here as will warrant the granting of defendant's motion.
It is next insisted that the state failed to prove that the time charged was within the statute of limitation (Code 1923, § 4931). The attention of the trial court was not called to this variance. Advantage cannot be taken of this omission by simply requesting the general charge. Circuit Rule 34; Bickley v. Porter, 193 Ala. 607, 69 So. 565.
It is earnestly insisted that there is no evidence upon which to base a verdict of guilt. In this we do not agree with appellant. The facts and circumstances made a jury question and we will not disturb the verdict. Other evidence tending to contradict defendant's evidence as to his being with the other boys in the car was properly admitted.
We find no prejudicial error in the record, and the judgment is affirmed.
Affirmed.