[Johnson v. The State.] the liquor, nevertheless he did testify that to the best of his recollection the defendant was the man. The evidence of the above witness rises above mere conjecture or suspicion. It assumes the dignity of the positive testimony of a witness who from the fact that he had no acquaintance with the defendant and had only seen him when he bought whiskey from him on one occasion in the dark was unwilling to positively say that he was the man, but was willing to testify that, to the best of his recollection, the defendant was the man who had sold him the liquor. It was the duty of the court to submit, under the evidence in this case, the question of the defendant's guilt vel non to the jury.-Kemp v. State, 89 Ala. 52, 7 South. 413; Paden v. Bellenger, 87 Ala. 575, 6 South. 351; Griffin v. State, 76 Ala. 29. There is no error in the record. The judgment of the court below is affirmed. Affirmed. Johnson v. The State. Violating Prohibition Law. (Decided Jan. 11, 1912. 57 South. 499.) 1. Intoxicating Liquor: Sales; Evidence; Intoxicating Effect.Where a witness testified that he purchased four bottles of liquid, which he drank in about thirty minutes, he may state that the liquid so drank had an intoxicating effect upon him, or that it intoxicated him. 2. Appeal and Error; Record; Requesting Charges.—It must affirmatively appear from the record that the charges requested and refused were in writing as required by section 5364. Code 1907, before the trial court will be put in error for refusing them. 3. Trial; Reading Testimony to the Jury. It is proper for the court to permit the official stenographer to read over to the jury at its request the evidence of one of the witnesses, for the purpose of refreshing the jury's memory with reference thereto. 4. Costs; Hard Labor; Rate Per Day. The rate per day at which one may be sentenced to hard labor for the payment of fine and costs, is 75 cents, and not 40 cents. [Johnson v. The State.] APPEAL from Walker Law and Equity Court. Lee Johnson was convicted of violating the prohibition law, and he appeals. Corrected and affirmed. The prosecuting witness testified that he bought four bottles of liquid, which in his best judgmnet was lager beer; that he drank the four bottles in about 30 minutes; and the solicitor asked him if he could feel any stimulating effects therefrom. The defendant objected to this question, and moved the court to exclude the answer, which was: "Yes, sir," it intoxicated me. I was fully intoxicated, and these four bottles were the only things that I had had to drink that was intoxicating that day." No counsel marked for appellant. R. C. BRICKELL, Attorney General, and W. L. MARTIN, Assistant Attorney General, for the State. The court will correct and affirm so far as the costs are concerned.-Dowling v. City of Troy, 56 Ala. 118. It was competent for the witness to testify that the fluid had an intoxicating effect upon him.-Marks v. The State, 159 Ala. 71; Knowles r. The State, 80 Ala. 9. It does not appear that the charges were requested in writing, and hence, they cannot be reviewed. PELHAM, J.-The defendant was convicted of a violation of the prohibition law. Section 7352 of the Code of 1907. The state's witness was properly allowed to testify to the intoxicating effect of the liquor purchased.Marks v. State, 159 Ala. 71, 48 South. 864, 133 Am. St. Rep. 20; Brantley v. State, 91 Ala. 47, 8 South. 816; Carl v. State, 87 Ala. 17, 6 South. 118, 4 L. R. A. 380; Knowles v. State, 80 Ala. 9. [Johnson v. The State.] The charges set out in the record as refused are not shown to have been asked in writing or to have been separately asked or refused. The only statement in reference to the charges is as follows: "Here the defendant asked the following charges, which were refused by the court." Following this statement in the bill of exceptions six charges are set out, but are not shown to have been in writing. Charges moved for must be in writing (Code, § 5364), and unless the record affirmatively shows that the charges asked were in writing, the trial court will not be put in error for their refusal.-Henderson v. State, 137 Ala. 83, 34 South. 828; Foxworth v. Brown, 114 Ala. 299, 21 South. 413; Bellinger v. State, 92 Ala. 86, 9 South. 399; Walker v. State, 91 Ala. 76, 9 South. 87; Rickets v. B. S. Ry. Co. 85 Ala. 600, 5 South. 353; Wheless v. Rhodes, 70 Ala. 419; Crosby v. Hutchinson, 53 Ala.,5. It was not improper for the court to allow the official stenographer at the request of the jury to read over to them the evidence of one of the witnesses as taken by the reporter to refresh the memory of the jury as to what had been testified to by the witness. The objection and exception to the court's allowing this to be done is shown by the bill of exceptions as having been taken after the court had permitted it. The judgment entry shows the defendant was sentenced to work out the costs at the rate of 40 cents per day, when the rate should have been 75 cents per day, and the judgment will be here corrected in that respect, and, as so corrected, the case will be affirmed.-Dowling v. City of Troy, 1 Ala. App. 508, 56 South. 118; Johnson v. State, 94 Ala. 35, 10 South. 667; Vaughan v. State, 83 Ala. 55, 3 South. 530; Miller v. State, 77 Ala. 41; Bradley v. State, 69 Ala. 318. Corrected and affirmed. [Wilson v. The State.] Wilson v. The State. Violating Prohibition Law. (Decided Jan. 18, 1912. 57 South. 503.) 1. Intoxicating Liquors; Illegal Sale; Beer.-The term "beer" is presumed to refer to a malt liquor; and hence, a charge of illegally selling malt liquor is supported by evidence of the sale of beer although the specific kind of beer is not shown. 2. Same; Instruction.-Where the prosecution was for selling beer in violation of the prohibition law, a charge asserting that unless the jury were satisfied from the evidence beyond a reasonable doubt that the defendant and another intended a sale of the beer testified to, then they must acquit, was properly refused, where there was some evidence of a gift of the beer by the defendant. 3. Charge of Court; Argumentative Instruction.-A charge as to the presumption of innocence which included the statement that this presumption was not a mere idle figure of speech, was rendered argumentative, and its refusal proper. 4. Same; Misleading. A charge asserting that if after considering the entire evidence the jury cannot say whether to acquit or convict the defendant, they must find him not guilty, was misleading. 5. Costs; Hard Labor; Rate.--Sentence for hard labor for the payment of fine and costs, should be at the rate of 75 cents per day. APPEAL from St. Clair Circuit Court. Heard before Hon. J. E. BLACKWOOD. A. A. Wilson was convicted of violating the prohibition law, and he appeals. Corrected and affirmed. * * The following charges were refused to the defendant: (B) "The court charges the jury that the law presumes every man innocent until his guilt is shown, and the minds of the jury are satisfied from the evidence to a moral certainty. And this presumption of innocence is not an idle figure of speech, but follows the defendant at all stages of the trial, until the guilt of the defendant is shown to the satisfaction of the jury." (S) "The court charges the jury that if, after considering the entire evidence, they cannot say whether to convict or acquit the defendant, then they must find [Wilson v. The State.] the defendant not guilty." (I) "The court charges the jury that, unless they are satisfied from the evidence beyond all reasonable doubt that Wilson and Cowan intended a sale of the beer testified to, then they must acquit the defendant." (C) "The court charges the jury that there is no evidence in this case as to what kind of beer the state witness got or bought from the defendant, and that the jury have no right to presume or guess that the bottle of beer which the state witness may have got from the defendant was malt liquor. M. M. & VICTOR SMITH, for appellant. The evidence did not support the charge.-Watson v. The State, 55 Ala. 158; Duval v. Augusta, 15 Ga. 813. The court erred in refusing charge B.-Nealson v. The State, 146 Ala. 683. Counsel discuss other charges, but without further citation of authority. Mo R. C. BRICKELL, Attorney General, and W. L. MARTIN, Assistant Attorney General, for the State. tion to quash the venire was properly denied.-Griffin v. The State, 165 Ala. 29. The jury was drawn from the proper box.-Shell v. The State, 56 South. 39. Charge B was an argument. Charge S was properly refused.-Hill r. The State, 156 Ala. 3; Gibson r. The State, 91 Ala. 64. WALKER, P. J.-A charge that the defendant "did sell, offer for sale, keep for sale or otherwise dispose of spirituous, vinous or male liquors, contrary to law," is supported by evidence of a sale by the defendant of a bottle of beer, though the evidence does not specifically disclose what kind of beer it was. In the case of Watson v. State, 55 Ala. 158, it was decided that the court would take judicial notice of the fact that "lager beer" is a malt liquor; it being said in the opinion: |