
    Walker v. The State.
    
      Violating Prohibition Law.
    
    (Decided June 11, 1914.
    65 South. 713.)
    1. Appeal and Error; Review; Exceptions Below. — Where no exception was reserved to the action of the court below in striking defendant’s plea, nothing is presented for review as to such action.
    2. Charge of Court; Invading Province of Jury.- — Charges which involve the assertion of the existence of a fact not disclosed by undisputed evidence, is invasive of the province of the jury, and properly refused.
    Appeal from Randolph Circuit Court.
    Heard before Hon. S. L. Brewer.
    Sam Walker was convicted of violating the prohibition laws, and he appeals.
    Affirmed.
    The specific charge was manufacturing prohibited liquors. The defendant’s plea was the pendency in the county court of Randolph county of a similar prosecution against him, commenced by warrant and affidavit, to answer which defendant had given bond. The charge referred to is as follows:
    I charge you, gentlemen of the jury, that defendant had a right to be at the still, unless he was there for unlawful or illegal purposes. And unless you believe from the evidence beyond all reasonable doubt that defendant was at the still for unlawful and illegal purposes, you will find him not guilty.
    No counsel marked for appellant.
    R. C. Brickell, Attorney General, and T. H. Seat, Assistant Attorney General, for the State.
   WALKER, P. J.

No exception was reserved to the action of the court in striking the defendant’s plea setting up the pendency of another prosecution for the same offense, and no ruling in reference to that plea is presented for review.

There is no merit in any exception reserved to a ruling on evidence.

The refusal to give the written charge requested by the defendant was not error. The evidence in the case was not such as to show without dispute that the place referred to in the charge was one at which the defendant, by virtue of ownership, or otherwise, had a right to be, whether his purpose in being there was a lawful or unlawful one. The charge involved the assertion of the existence of a fact not disclosed by undisputed evidence in the case, invaded the province of, the jury, and was well refused.

Affirmed.  