
    Treadwell v. The State.
    
      Violating Prohibition Law.
    
    (Decided July 6, 1909.
    53 South. 290.)
    1. Grimmial Law; Several Offenses; Election. — Under a count charging that defendant kept intoxicants for sale, the state is not held to proof of one act alone and hence, there is no necessity for an election.
    2. Intoxicating Liquors; Evidence; Experts. — One need not qualify as an expert to testify as to whether a particular liquor is whisky.
    3. Witnesses; Examination; Gross. — Where a defendant’s witness had stated that he sent three orders only by express for liquor for the defendant, the state may be permitted to ask as to the sending of orders for other persons, where the testimony is limited to a test of the recollection of the witness.
    4. Same; Judicial Discretion. — The latitude allowed on the cross examination of a witness rests largely in the discretion of the trial court.
    5. Same; Oorrohoration. — Where a witness stated that a third person gave him a specific sum of money and sent him to buy liquor and that having bought it witness delivered it to such person, it was competent for the state to show by such third person that he gave the witness such sum and directed him to buy liquor from the defendant and that witness delivered a bottle of whisky to him.
    
      6. Same; Re-direct Examination. — The admission of new; matter on re-direct examination not in rebuttal of anything brought out in the cross is within the discretion of the trial court.
    7. Trial; Argument of Counsol; Propriety. — A statement by the solicitor in argument to the jury that the evidence tended to show that whisky was being sold from the depot and in the shadow of the county capítol, was not the statement of a fact not in evidence but rather an opinion or argument as to inferences to be drawn frorh the evidence, and was legitimate.
    8. Charge of Court; Favorable to Appellant; Right to Complain.— Where a charge given is favorable to appellant, he is in no position to complain thereof.
    9. Same; Partly Bad; Exceptions. — If any part of an instruction is bad, it is the duty of the appellant, in excepting, to separate the good from the bad.
    10. Appeal and Error; Harmless Error; Instructions. — The refusal to direct an acquittal as to a count in the indictment is harmless where the jury finds the issues in favor of the defendant as to that count.
    Appeal from Marengo Circuit Court.
    Heard before Hon. John T. Lackland.
    From a conviction for violating the prohibition law, Jasper Treadwell appeals.
    Affirmed.
    The facts sufficiently appear in the opinion of the court. The solicitor in his argument said: “The proof in this case tends to show that whisky is being dispensed from the depot and in the shadow of your county capítol.” The court charged the jury orally as follows: “That this party went to the shop and delivered it as porter. He had a right to do that; but when the box was open, if he took whisky out and carried it to Mr. Canterbury, that would he an illegal delivery.”
    I. I. Canterbury, for appellant.
    No brief came to the Reporter.
    Alexander M. Garber, Attorney General, for' the State.
   DOWDELL, C. J.

The indictment contains two counts. Under the second count, which charges that tbe defendant “kept for sale spirituous, vinous or malt liquors,” etc., the state was not restricted to proof of one act of selling as tending to support this charge, and hence could not he compelled to an election. Upon .the cross-examination by the solicitor of the defendant’s witness, Carter, who testified to sending three orders only through the express office for liquor for the defendant, as testing the recollection of the witness and to which the court expressly limited the inquiry, no reversible error was committed in permitting the solicitor to ask as to sending of orders for other persons. The latitude of a cross-examination rests largely in the sound discretion of the trial court, and we do not see that the defendant in the present instance wa.s prejudiced in the exercise of this discretion by the court.

The state’s witness, Tucker, having testified that he was sent by Mr. Grant with $1.50 to purchase from the defendant whisky for him, Grant, and that, having purchased the whisky from the defendant, he, witness, delivered it to Grant, it was permissible to prove by Grant that he gave the witness Tucker the $1.50, and told him to go and buy it from the defendant, and that Tucker took the money, and returned and delivered to him the bottle of whisky. The bottle of whisky in question, after having been identified by Grant as the bottle delivered to him by the witness Tucker, was produced in evidence, not having been before “opened,” and Grant, while testifying as a witness, was requested to open the bottle, taste the liquor, and say whether it was whisky. This was objected to by the defendant on the ground that the witness was not shown to be an expert. This objection was without merit. It is hardly to be supposed in this day and generation that expert testimony is required in the taste of whisky to say whether or not a liquid is whisky. It may require a connoisseur to tell the different brands or a superior from an inferior article, but the law takes no such distinction in prosecutions for violation of liquor laws.

The question asked the witness Carter by the defendant, upon the redirect examination, as to what became of Jim Tucker when the defendant told him that he had no whisky to sell, was new matter, and not in rebuttal of anything drawn out by the state on cross-examination, and its allowance was within the discretion of the trial court.

The statement by the solicitor in his argument to the jury as to “the tendency of the proof in the case” was not the statement by him of a fact not in evidence, but rather an opinion or argument as to an inference to be drawn from the evidence, and therefore within the scope of legitimate argument.

A part- of the oral charge of the court set out in the bill of exceptions as having been excepted to by the defendant correctly stated the law, and favorably to the defendant. This renders the exception unavailing. If any part was bad, which we do not decide, it was the duty of the defendant in excepting to separate the. bad portion from the good.

The refusal of the court to give the general charge requested as to the first count of the indictment, if error, resulted in no injury to the defendant, since the jury by their verdict acquitted the defendant as to the first count.

There was evidence which tended to support the second count, and the general charge requested as to this count was therefore properly refused.

Finding no reversible error in the record, the judgment must be affirmed.

Affirmed.

Anderson, Sayre, and Evans, JJ., concur.  