
    Kinsaul v. The State.
    
      Violating Prohibition Law.
    
    (Decided June 17, 1913.
    62 South. 990.)
    1. Intoxicating Liquors; Evidence; Sufficiency. — Where there was evidence tending to prove that a considerable quantity of intoxicating liquors was found in a building in which, defendant was engaged in the business either as proprietor or as an employe, and other evidence tending to show that defendant was the person who kept it there, the evidence was sufficient under section 4, Acts 1909, p. 63, to support a conviction for violating the prohibition law, the conflicts in the evidence being a question for the jury.
    2.- Appeal and Error; Harmless Error; Evidence. — Where it was not controverted that a quantity of whisky and beer was found in the building, the defendant’s efforts being to show that he was a mere employee and that the liquor .was put and kept there wholly without his knowledge or consent, he was not prejudiced by the admission of the return of the sheriff on a search warrant introduced for the purpose of showing a list of the liquors seized.
    3. Trial; Argument of Counsel. — Where a part of the argument of the solicitor was proper under the evidence and a part improper, an objection to the whole, without calling the court’s attention to the objectionable part, cannot be sustained.
    4. Charge of Court; Argumentative Instructions.- — Where the evidence tended to show that another was proprietor and owner of a restaurant and a meat market, and that defendant was an employee, and kept a key and looked after the business, and that a quantity of liquor and beer was stored therein, a charge asserting that there was no proof of a partnership between defendant and such other person, and that the fact that the other person had been charged with selling whisky should not be considered against the defendant, was both abstract and argumentative.
    Appeal from Geneva County Court.
    Heard before Hon. John A. Campbell.
    Bill Kinsaul was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    The testimony tended to show that J. H. Badford was the owner and proprietor of a restaurant and a meat market, and that defendant was an employee, and had a key to the premises and looked after the business, . except when he was out in the country buying cattle. It further appeared that the place was raided, and a quantity of prohibited liquor was found stored therein, and that defendant was present at the time of the search. In his argument to the jury the solicitor said the defendant Avas working for J. H. Radford, and must have known all about this whisky, and it was the duty of the jury to place upon him a heavy fine and let Rad-ford pay it. Charge 6 was as follows: “There is no proof that a partnership existed between defendant and J. H. Radford, and the fact that Radford had been charged Avith selling Avhisky should not be construed against the defendant.”
    J. F. Johnson, for appellant.
    Counsel discusses the errors assigned, but without citation of authority.
    R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the 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 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.  