
    (93 South. 226)
    HOWTON v. STATE.
    (6 Div. 88.)
    (Court of Appeals of Alabama.
    May 16, 1922.)
    1. Criminal law &wkey;753(2) — Affirmative charge for defendant properly overruled, where evidence is conflicting.
    Where the evidence is conflicting, affirmative charge for defendant is properly overruled.
    2. Criminal law &wkey;726 — Statement of solicitor held not reversible error.
    A statement of the solicitor, during argument, that “they are both members in good standing in the moonshiners’ union, and_ are candidates for the county roads or penitentiary,” was not reversible error, where the statement was made in response to statements by defendant’s counsel.
    Appeal from Circuit Court, Jefferson County ; J. G. B. Gwin, Judge.
    McKinley Howton was convicted of violating the prohibition laws, and he appeals.
    Affirmed.
    The first count charged distilling, making, and manufacturing prohibited liquors, while the second count charged having or possessing a still appliance, apparatus, etc., for making prohibited liquors. In his argument the solicitor said:
    “They are both members in good standing in the moonshiners’ union, and are candidates for the county roads or penitentiary.”
    Pinkney Scott, of Bessemer, for appellant.
    The testimony fails to make a case authorizing the conviction of this defendant. Ante, p. 217, 90 South. 16; ante, p. 212, 89 South. 900; 17 Ala. App. 655, 88 South. 48; ante, p. 236, 89 South., 864. Counsel discusses the other matters complained of, but without citation of authority.
    Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
    The verdict was general, and will be referred to the good count. Laminack v. State, ante, p. 399, 92 South. 502; Id., ante, p. 400, 92 South. 505; Forrister v. State, ante, p. 492, 93 South. 279. There was no error injurious to defendant in the admission of evidence or argument of counsel. 4 Michie, Dig. 322; 12 Michie, Dig. 1190.
   BRICKEN, P. J.

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 testimoniare without error, and could in no manner have injuriously affected the substantial rights 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.  