On Rehearing. The application for rehearing presents nothing new, and ordinarily would call for no response. However, the seeming seriousness of learned counsel's contention that we have misconstrued the record and that a reversal should be declared, first because of the insufficiency of the evidence, and second because of the fine (Draconian, appellant calls it) imposed, induces this further brief statement.
Proof that Mrs. Sales, the defendant, sent Shelton to Cullman for the whiskey was given by Shelton, herself. As to this, it is asserted by appellant in brief: "The entire evidence pertinent to this controversy is (quoting the record of Shelton's testimony): 'In January, 1941, I went to Cullman. Mrs. Sales gave me $21.25 and told me to go down there and buy some cornfield corn, three gallons; that was in pints. I went on the bus and she gave me my fare and enough money to buy three gallons of whiskey in pints. I took a suit case which she gave me. The conversation was in her bed room. I left Decatur at 10:05 in the morning and went to Cullman and when I got there I got a cab and went and got the liquor at the liquor store. I put the whisky in the suit case there in the liquor *Page 21 store and got on the bus to come to Decatur the same day. When I got to Decatur I got off the bus at Sixth Avenue and Sixth Street and took the suit case off with me. She told me not to go to bus station but to get off catch a cab.' "
This court perceives no substantial difference in the foregoing statement and the interpretation of the evidence embodied in the original opinion. To one duty-bound to entertain an impartial view, the conclusion is inescapable that the above undisputed facts warranted the verdict of guilty — certainly did not warrant the affirmative charge for the defendant. Consequently, this court must and does so hold.
As to the other argument that we should do something about the (allegedly severe) fine imposed, it is clear that we cannot on the showing made by the present record. This contention is answered in Wood v. State, 28 Ala. App. 464, 465, 187 So. 250,251, where it was said: "Appellant complains bitterly at the severity of the punishment imposed upon him by the trial court. * * * As to the punishment imposed the trial court acted within the limit provided by Statute. * * * This was the prerogative of the trial court, and this court is without authority to review or revise his action in this connection."
The assiduous, in fact classical, argument of able counsel in brief is to be commended, but, in the absence of prejudicial error appearing, the application must be overruled.
Opinion extended and rehearing denied.