
    (88 South. 348)
    WOOTEN v. STATE.
    (8 Div. 757.)
    (Court of Appeals of Alabama.
    Feb. 15, 1921.)
    1. Intoxicating liquors &wkey;>238(l) — Evidence held sufficient to submit case to jury.
    In prosecution for manufacturing prohibited liquors, evidence held sufficient for submission of case to jilry.
    2. Intoxicating liquors &wkey;>239 (2) — Refusal of instruction held proper.
    In prosecution for manufacturing prohibited liquors, refusal of instruction that defendant could not be -found guilty if there were only two men at the still, and that one of the men was a named person other than the defendant, held proper, since the defendant might have been the other man.
    Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.
    Emmett Wooten was convicted of manufacturing prohibited liquors and he appealed.
    Affirmed.
    The evidence tended -to show the finding of a still in operation, and that it was being operated by two men, -one of whom was the defendant. Then there was evidence tending to show that the defendant was there, and it was a case of mistaken identity.
    Charge 5, requested by the defendant, is as follows:
    (5) If you believe that there were only two men at the still when the officers approached, and one of these men was Harve Wooten, you cannot find the defendant guilty.
    Mitchell & Hughston, of Florence, for appellant.
    No brief came to the Reporter.
    J. Q. Smith, Atty. Gen., for the State.
    No brief came to the Reporter.
   MERRITT, J.

The defendant was convicted for a violation oFthe prohibition law, and sentenced to the penitentiary for an indeterminate term of not less than 13 nor more than 15 months.

There was no error in refusing to give the general affirmative charge requested by the defendant. There was ample evidence to warrant the conviction of the defendant.

Written charge 5 was properly refused. If Harve Wooten was one of the men at the still, and there were two men there at the time the officers approached, the jury could well have inferred that the defendant was the other’ man, and of his guilt.

We have examined the objection made to the introduction of certain portions of the testimony, and they are without merit.

There is no error in the record, and the judgment ‘ is affirmed.

Affirmed.  