The appellant was convicted of a violation of the prohibition law, and appeals.
The defendant's witness Miller, on cross-examination, testified that he was not drunk, neither was he drinking, at a certain time at Keeling's drug store when in a conversation Ratlidge, the state's witness, said he had never bought a drop of liquor from the defendant in his life. Over the objection of the defendant, the state was permitted to show by the witness Ratlidge that at the time of the conversation at keeling's drug store Miller was drinking and staggering around.
It is true that the state elicited the testimony of the witness Miller that he was not drunk, neither was he drinking, at the time referred to; but it was a very material inquiry, and a fact to be considered by the jury, as to his condition when he heard the witness Ratlidge make the declaration accredited to him. The state was not bound by Miller's declaration brought out on cross examination, if it could show his condition to be such as would tend to discredit and impeach the truthfulness of such a statement.
There was no error in refusing the general affirmative charge requested by the defendant. The evidence was in conflict, and while we may not be so much impressed with the testimony offered by the state, the weight to be given the testimony is a matter for the jury.
It is sufficiently clear from the judgment entry that the imposition of four *Page 205 months' hard labor is in addition to the fine imposed by the verdict of the jury. The judgment recites a confession by the defendant and sureties for the amount of the fine and cost, and while it is not said in so many words that hard labor is added as additional punishment, with the fine and cost confessed, such sentence for hard labor could only be as additional punishment.
There is no error in the record, and the judgment of the circuit court is affirmed.
Affirmed.