[Scott v. The State.] of the matters made the basis of the objection. To this action of the court the defendant excepted. It is a well established rule in this state that the grant or refusal of a continuance rests in the sound discretion of the trial court, and is not the subject of revision on appeal. It is not denied that there may be a case of such a gross and palpable abuse of this discretion as to constitute an exception to this rule, and to require a reversal in order to afford the defendant an opportunity for a fair trial.-White v. State, 86 Ala. 69, 5 South. 674; Davis v. State, 92 Ala. 20, 9 South. 616; Cunningham r. State, 117 Ala. 59, 23 South. 693. We are not of the opinion that the record in this present case shows that there was such an abuse of discretion. Though it may be presumed, the record not showing to the contrary, that the discharge of the former jury was in consequence of a flagrantly unwarranted acquittal at its hands, yet We are concerned with the question as to the propriety of that action, except in so far as the manner of it, and the remarks with which it was accompanied, in connection with the subsequent remarks of the trial judge to the new jury, might have had such an effect upon the jury which tried this case as to make it apparent, or at least probable, that the trial could not have been a fair one. In his remarks to the jury which was impaneled to take the place of the one that had been discharged, the pressiding judge made mention of the fact that the discharged jury had rendered a verdict of not guilty in a liquor case in which they had been charged by the court to find the defendant guilty if they believed the evidence beyond a reasonable doubt, and referred to reports that had been brought to the notice of the court that the juries in that county disapproved of hard labor sentences for persons convicted of violations of the liquor laws, and [Scott v. The State.] that, as the presiding judge was reputed to have imposed hard labor sentences on person's convicted elsewhere of such offenses, they would not convict in such cases unless some promise or assurance was given that hard labor sentences would not be imposed. The statement was made with emphasis that the presiding judge would give no such promise or assurance. He addressed the jury at some length in reference to the respective functions and duties of the court and of the jury, and they were plainly admonished as to their duty to convict when the evidence satisfied them beyond a reasonable doubt that the defendant was guilty of the charge made against him; in the course of its remarks the court saying: "When the evidence is without conflict, and clearly shows guilt, and there is not in it room for any other inference or conclusion than that the defendant is guilty, and when it is reasonable and fair and free from suspicious or impeaching conditions, and you believe it beyond a reasonable doubt, it is your duty to convict." In no part of the remarks was there an intimation that the jury should convict in any case unless they were convinced from the evidence beyond a reasonable doubt that the defendant was guilty; and it was expressly stated to them that, "although an af firmative charge should be given, still, if they did not believe beyond a reasonable doubt that the defendant. was guilty, it would be their duty to acquit.” In the argument of the counsel for the appellant it is urged that this address of the presiding judge was calculated to affect unfavorably the fairness of the trial entered upon the following day; but no part of it is pointed out as embodying a misstatement of the law as to the duties of jurors as triors of the facts. Nor do we discover in the remarks any improper instructions in that regard. As to the specific grounds stated [Scott v. The State.] in support of the objection and motion, it is enough to say that the one suggesting that "said remarks and proceedings intimate that the court was of the opinion that the defendants in all liquor cases on the docket were guilty" was without foundation in fact, as the record does not indicate that the court was guilty of making in any way such an intimation, and that the other one, suggesting that "said remarks and proceedings were calculated to prejudice and intimidate the jury in the present case, and make them feel that they were not free to bring in a verdict according to their own convictions," cannot be sustained without deciding in effect that an emphtaic admonition to the jurors in attendance, given before the trial of a case has been entered upon, as to their duty to convict when they believe from the evidence beyond a reasonable doubt that the defendant is guilty, must be condemned as a prejudicial and intimidating influence, though the giving of such admonition was occasioned by occurrences which had made it apparent to the court that juries in that locality were disposed to acquit persons charged with the commission of a certain class of offenses, specifically referred to, on considerations other than the lack of the requisite proof of guilt. We are not of opinion that the action of the court in requiring the defendant to go to trial after such an admonition had been given to the jury, under the circumstances stated, constituted so palpable an abuse of discretion as to suggest that the defendant was thereby deprived of the right to a fair trial. Landthrift v. State, 140 Ala. 114, 37 South. 287. The evidence without conflict showed a sale of the liquor. There was no evidence tending to prove that the defendant's relation to the transaction was other than that of seller. A sale completed, which passed title to the liquor as between the parties to the contract, [Hollingsworth v. The State.] is within the terms of the law prohibiting such a sale, without regard to the ownership of the seller.-Taylor v. State, 121 Ala. 24, 25 South. 689. The requested charges which sought to raise a question as to whether the defendant was the seller or the "assisting friend" of the purchaser were abstract. There was no evidence tending to prove that any one other than the defendant was the seller or interested in the sale. Besides, it seems that it is entirely competent for the Legislature to provide that a charge of selling prohibited liquor may be sustained by evidence showing either that the defendant was the seller or acted "as agent or assisting friend of the seller or buyer in procuring an unlawful sale of any prohibited liquors" as it undertook to do by section 33 of the act approved August 25, 1900, above referred to. Acts Sp. Sess. 1909, p. 63; Jones v. State, 136 Ala. 118, South. 236. Affirmed. Hollingsworth v. The State. Violating Prohibition Law. (Decided Jan. 16, 1912. Rehearing denied Jan. 30, 1912. Intoxicating Liquors; Sales; Identity; Jury Question.-Where the prosecuting witness testified that to the best of his recollection, the defendant was the one who sold the liquor, but that he had no acquaintance with him, and could not say positively that he was the man, there was sufficient evidence of the identity of the defendant as the guilty agent, to require a submission of that question to the jury. APPEAL from Anniston City Court. Heard before Hon. A. H. ALSTON. Emmett Hollingsworth was convicted of violating the prohibition law, and he appeals. Affirmed. [Hollingsworth v. The State.] P. F. WHARTON, for appellant. There was not suf ficient evidence of the identity of the accused to authorize a conviction in this case, or a submission of the question of his identity to the jury.-Green v. The State, 68 Ala. 514; 14 Wall. 442; 12 Cyc. 594; 6 Enc. P. & P. 678. R. C. BRICKELL, Attorney General, and W. L. MARTIN, Assistant Attorney General, for the State. The evidence was sufficient to require a submission to the jury.-Griffin v. The State, 76 Ala. 29. The court properly denied the affirmative charge.-Kemp v. The State, 89 Ala. 52. DE GRAFFENRIED, J.-The only question presented by the record is whether the bill of exceptions shows that the evidence sufficiently identified the defendant as the party who sold liquor to one of the witnesses for the state on a certain occasion to have justified the court in submitting the question of guilt vel non to the jury. He The man who bought the liquor says in one part of his testimony: "Looking at the defendant now, I cannot say positively that he is the man I got the whiskey from. It was in the dark. I could not say that he is the man or that he is not the man." In another place he says: "My best recollection is he is the man. was pointed out to me and was nearly in the door at the time." And in another place he says: "To the best of my judgment, I could not say positively that the defendant is the man Sam Davis pointed out to me. He had his back to me. I could not say positively that the defendant is the man I got the liquor from-to the best of my judgment and recollection." While the above witness was not willing to testify positively that the defendant was the man who sold him |