
    Green v. Commonwealth.
    (Decided February 6, 1925.)
    Appeal from Floyd Circuit Court.
    1. Intoxicating Liquors — Evidence Held to Sustain Verdict Finding Defendant Guilty of Selling Jamaica Ginger for Beverage Purposes. — Evidence held to sustain verdict finding that defendant sold Jamaica ginger for beverage purposes, as against his contention that he merely gave prosecuting witness some for medicinal purposes.
    2. Criminal Law — Motion to Exclude all of Witness’ Testimony, a Part of which was Admissible, Held Properly Overruled. — Motion to exclude all of the testimony of a witness given on rebuttal was properly overruled, where a part of the testimony was rebuttal evidence and there was no objection to the testimony while it was being introduced.
    3. Criminal Law — Question as to Improper Admission of Evidence Not Considered in Absence of'Objection or Motion to Exclude.— Where there was no objection to improper rebuttal evidence and no motion to exclude that part of the testimony that should have been introduced in chief, the question of whether such testimony was improperly admitted was not saved and will not be considered on appeal.
    B. M. ADAMS for appellant.
    FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.
   Opinion of the Court by

Judge Clarke

Affirming.

Appellant was convicted of unlawfully selling Jamaica ginger for beverage purposes, and while be testified that be did not sell but gave same to tbe prosecuting witness for medicinal purposes, tbe evidence of tbe prosecuting witness, as well as tbe attendant circumstances, fully sustains tbe verdict of tbe jury that the admitted transaction was a sale and for beverage purposes.

Hence tbe contention that the verdict is flagrantly against tbe evidence cannot be sustained.

Tbe only other contention is that the court committed prejudicial error in refusing to exclude all of the evidence of tbe prosecuting witness when recalled after the defendant bad closed bis evidence. This is upon tbe theory that this evidence was admissible only in chief and not in rebuttal. This is true as to much of this evidence, but there was no objection while tbe evidence was being introduced, and tbe motion made at its completion was to exclude all of it, which was properly overruled, since a part of it was properly rebuttal evidence.

There being no objection to tbe introduction of that part of this evidence that should have been introduced in chief, nor any motion to exclude that part of it, tbe question as to 'whether or not it was improperly admitted was not saved and is not here. Hall v. Commonwealth, 189 Ky. 72, 224 S. W. 492; Lowery v. Commonwealth, 191 Ky. 657, 231 S. W. 234.

Perceiving no error prejudicial to appellant’s substantial rights, the judgment is affirmed.  