Opinion
7 Div. 2.
February 2, 1924.
Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.
Andy Goodman was convicted of manufacturing whisky, and appeals. Affirmed.
On the examination of a witness the solicitor propounded this question:
"I want to ask you whether or not there was any dugout under the floor anywhere?"
Charge 4, refused to defendant, is as follows:
"The court charges the jury that, if you have a reasonable doubt as to whether defendant was seen by the prosecuting witness under the house of Rear working at the still, you should acquit the defendant."
Hugh Reed, of Center, for appellant.
The question asked by the solicitor was leading, and objection should have been sustained. Hill. v. State, 156 Ala. 3, 46 So. 864. Charge 4 should have been given.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Charge 4 singles out a part of the evidence, and is bad. 1 Mayfield's Dig. 170.
The evidence in this case was in direct conflict, that for the state making a positive case for the state, and that for the defendant denying the statements made by the state's witnesses. The question was one for the jury, and we are not authorized to disturb the verdict.
While the question asked by the solicitor, to which objection was made, was leading, its allowance was in the discretion of the trial judge.
Refused charge 4 is bad, for that it singles out a portion of the evidence, upon which an acquittal is demanded. 1 Mayf. Dig. p. 170, par. 13.
We find no error in the record, and the judgment is affirmed.
Affirmed.