In passing on the contentions made by appellant it must be borne in mind that the accused was given the lowest penalty, and that no testimony was before the jury save that of the one state witness who testified positively to the fact that he found in appellant's possession a large quantity of choc beer, that he drank some of it, and that it was intoxicating liquor. In view of these facts we are unable to conclude that the conduct of the District Attorney either in what was done during the introduction of evidence or in the argument, even if deemed by the trial court to be of such nature as to call for an instruction to the jury not to consider it — should call for reversal. When the evidence is plain and a violation of the law is made out, and the lowest penalty inflicted, we do not reverse for matters whose only effect could be to create prejudice in the minds of the jury against the accused.
The motion for rehearing will be overruled.
Overruled.