
    12562.
    Powell v. The State.
   Luke, J.

1. The challenge to the array of jurors put upon the defendant, upon the ground the sheriff’s name appeared on the indictment as prosecutor, is without merit, since it does not appear that the sheriff, who performed the mere ministerial act of summoning the jury, had more than a nominal interest in appearing as prosecutor upon the indictment.

Decided July 26, 1921.

Indictment for manufacturing intoxicating liquor; from Walker superior court — Judge Wrigbt. May 16, 1921.

Rosser & Shaw, for plaintiff in error.

E. S. Taylor, solictor-general, J. E. Kelly, contra.

2. No error harmful to the defendant was shown by the assignment of error upon the instruction of the court that if the jury saw fit to do so, they could find the defendant guilty and recommend that he be punished as for a misdemeanor, and, if the judge should approve the recommendaton, he would be punished as for, a misdemeanor.

3. The evidence authorized the defendant’s conviction and it was not' error for any reason assigned to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.  