Opinion
8 Div. 672.
June 30, 1928. Rehearing Denied August 7, 1928.
Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.
Huston Lyles, alias Liles, was convicted of manufacturing whisky and unlawfully possessing a still, and he appeals. Affirmed.
Charges 4 and 5, refused to defendant, are as follows:
"(4) If there is a reasonable doubt growing out of the evidence as to the positive identification of defendant by the officers, the law gives the defendant the benefit of the doubt, and if there is such a doubt growing out of the evidence, acquit defendant.
"(5) The defendant offered proof that he was some other place than the still at the time the officer raided the still, and if this proof so creates a reasonable doubt in your mind that defendant was at the still at the time he should have the benefit of such doubt and in that event you should find him not guilty."
James C. Roberts, of Florence, for appellant.
The affirmative charge was erroneously refused to defendant. Dickey v. State, ante, p. 375, 115 So. 848; Suggs v. State, ante, p. 311, 115 So. 289. Charges 4 and 5 should have been given.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Without going into a detailed discussion of the evidence, we hold that the facts and legal inferences to be drawn therefrom are sufficient to sustain the conviction. The facts in this case are easily distinguishable from the facts in those cases cited by appellant in his brief.
Refused charge 4 is an argument, and refused charge 5 is not predicated upon all of the evidence.
There is no error in the record, and the judgment is affirmed.
Affirmed.