Kinsaul v. State

WALKER, P. J. — There was evidence tending to. prove that a considerable quantity of intoxicating liquor Avas found in a building in Avhich the defendant, either as the proprietor or as the employee of another was engaged in business. As the statute (Acts Special Session 1909, p. 63, § 4) makes the keeping of such li quors in such a place prima facie evidence that they were kept for sale, Avith intent to sell the same, contrary to law, and as there was evidence tending to prove that the defendant was the person who kept them there, there is no merit in the claim that there was an absence of evidence to support the charge against him. The conflict in the evidence bearing upon'this inquiry was a matter for the determination of the jury. That a quantity of whisky and beer was found in the place above mentioned, on the occasion of a search [407] of it when tbe defendant was present, was not controverted in tbe trial. Tbe defendant did not seek to rebut tbe testimony to this effect, wbicb was offered .by tbe state, though be testified as a witness in bis own bebalf. His effort was to show that be was there as a mere employee, and that tbe liquor was put and kept there -wholly without bis knowledge or consent. In this condition of the evidence be could not have been prejudiced by tbe action of tbe court in permitting tbe sheriff’s return on tbe search warrant to be used for tbe purpose only of showing tbe list of tbe liquors wbicb were seized. A part of tbe statement made by tbe solicitor in bis argument, wbicb was objected to as a whole, was of a fact wbicb evidence in tbe case tended to prove. Tbe part of that statement, wbicb it is now claimed was subject to objection, was not specifically called to tbe attention of tbe court and objected to. As tbe objection made by tbe defendant was not directed against tbe objectionable feature of tbe statement, but against tbe whole of it, tbe court did not err in overruling tbe objection. . Tbe objection, to be available, should have separated tbe bad from tbe good. — Pugh v. State, 4 Ala. App. 144, 58 South. 936; Swain v. State, Infra, 62 South 446. Written charge 6, requested by tbe defendant, was both abstract and argumentative. Tbe refusal to give it was not error. Affirmed.