The opinion
On Rehearing.
It is now insisted,’ for the first time, that on the trial of this case there was no evidence that the offense complained of was committed in Houston county. In other words, it Is contended that:
“No witness testified in direct terms that ap-; pellant was in Houston county at the time the officers say he had the liquor.”
This insistence can be of no avail to appellant, for the reason that the point was not brought .to the attention of the trial court, as required by circuit -and inferior court rule 35. Ray v. State, 16 Ala. App. 496 , 79 So. 620 . Moreover, there was evidence adduced tending to show that the' de *241 fendant was in Dothan at the time of the alleged commission of the offense. This court judicially knows fhat Dothan is an incorporated city, and is situated in Houston county, Ala.
It is insisted by appellant that, under the statute (Code 1923, §§ 4621, 4622), the duty devolved upon the jury, in case of conviction, to assess a fine, and, failing to do so, the court was without authority to sentence the defendant to hard labor for the county. The verdict of the jury in this case was:
“We, the jury, find the defendant guilty as charged in the indietmenj.”
The jury assessed no'fine. Thereupon the court sentenced the defendant to hard labor for the county. We are of the opinion'that the court was authorized so to dd under the provisions of section 5286, Code 1923, which reads as follows:
“When an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury shall not he required to impose a fine; but, if in their judgment, the defendant should only be punished in some other' mode, may, in such case, only find him guilty and leave the imposition of the punishment to the court.”
We are. of the opinion that the judgment entry shows a sufficient adjudication of guilt. The insistence to the contrary on application for rehearing cannot be sustained.
Other questions urgently presented on application for rehearing have had the careful consideration of this court sitting en banc. We find no reversible error, and perforce must hold that the application for rehearing be overruled.