2 Div. 983.

106 So.2d 267 (1958)


Court of Appeals of Alabama.

Attorney(s) appearing for the Case

Joe Thompson, Butler, for appellant.

John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.

CATES, Judge.

Stance Pearson was tried without a jury in the Choctaw Circuit Court of violating the statute against selling, possessing, etc., prohibited liquors. On proof of his being a repeater, he was given the maximum fine and sentence, Code 1940, T. 29, §§ 98 and 99.

The State adduced proof by the testimony of two Federal agents that about 6:30 or 7:00, p. m., January 7, 1958, at Stance's store near Melvin, Alabama, they bought two pints of moonshine whiskey from a man identified by one witness as the defendant and by the other witness as answering to the name of Stance.

The defense was that in the dark all cats are gray, and that most strangers did mistake Clarence Pearson for his brother, Stance. Clarence testified he sold the whiskey and that his brother was away from the store slopping a hog.

This conflict was resolved thus:

"Judge Pelham: I don't think these officers are mistaken between these two men. Stance, I have given you a lot of chances to quit that whiskey business. I am fining you $500.00 and giving you twelve months."

We consider the record free of any error prejudicial to any substantial right of the defendant.



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