Howton v. State , 18 Ala. App. 509 ( 1922 )

The state offered testimony which tended to show that the defendant was seen making whisky on the night of and just prior to his arrest. This the defendant denied, although he did admit that he was at the still, as testified to by witnesses for the state, and that whisky was at that time being made. This conflict in the testimony presented a question for the jury; therefore the affirmative charge, requested by the defendant, was refused without error.

The rulings of the court on the testimony are without error, and could in no manner have injuriously affected the substantial right of defendant.

The argument of the solicitor, to which objection was made and overruled, would not authorize a reversal of the judgment of conviction. The portion of the argument complained of appears to be in response to statements made by defendant's counsel in his argument to the jury, and for this reason does not exceed the bounds of legitimate argument. 4 Mich. Ala. Dig. 322.

The court properly charged the jury at the written request of defendant, that they could not convict the defendant under the second count of this indictment. There was, however, ample evidence to sustain the charge contained in the first count.

No error appearing in any of the rulings of the court, and no error being apparent on the record, the judgment of the lower court is affirmed.

Affirmed.