citation">18 Ala. App. 281, 91 So. 499.

The attempt to manufacture prohibited liquor is an indictable offense under the laws of this state, and an indictment properly charging such offense is not demurrable. Corkran v. State, 203 Ala. 513, 84 So. 743.

Under and by virtue of an act of the Legislature approved September 22, 1915 (Acts 1915, p. 707), the circuit courts of the several counties shall be open for the transaction of all business or judicial proceedings of every kind from the first Monday in January to and including the last Saturday in June of every year, and from the first Monday after the Fourth of July to and including the last Saturday before Christmas Day of every year. Section 2 of the said act provides that the causes on the dockets shall be called peremptorily at the times fixed by law and at such other times as may be fixed by order of the circuit judge or the Chief Justice of the Supreme Court, and the cases against prisoners shall be called as many more times as may be necessary to secure prompt trial. There are some exceptions to this act, fixed by other acts, which do not apply here.

On March 15, 1923, the grand jury of the county duly and regularly returned into the court the indictment in this case. On March 22, 1923, the circuit judge then presiding in said court made and caused to be entered on the minutes an order that a special session (not term) of the circuit court for that county should be convened at the usual place of holding the same on April 9, 1923, and continue for one week, or until the business of the court is disposed of, and that all causes, both civil and criminal, pending in said court, "shall be triable at said special jury session." It was further ordered that petit juries be drawn and organized in the manner provided by law.

There is nothing in the point that the judge presiding was the junior judge of the circuit. He, being the presiding judge at the time the order was made, had full authority to do so. After an indictment is returned into court it becomes a "cause pending in said court," and was included in the court's order hereinabove referred to. This being a regular term of the circuit court, and juries being needed for the week designated, the presiding judge was authorized under section 18, Acts 1919, p. 1039, at such time as he deemed best, to draw the jury, as was done in this case. This was done in accordance with the act supra.

The court, during the progress of the trial, interjected several remarks at times when called upon for rulings on the admissibility of testimony. For instance:

Defendant's counsel asked a witness: "Singlings isn't fit to drink, is it?" The Court: "Lots of it is not fit to drink." Question by defendant: "Would you sell it when you was in the business?" State's objection sustained, and court added: "That might have been 20 years ago, or when it wasn't against the law, or might have been a government still." Question by defendant: "Is the Hinton place close to it [the still]?" The Court: "How could he know if he does not know where the still place was?" Question by defendant: "The path they did go, how far would that be?" The Court: "He didn't say anything about the path; they may have gone the road." Question by defendant: "Well, there is a nearer way to go. That is about how far?" Witness: "I don't know." The state objects because leading. The Court: "Well a person can tell whether the question is being framed so as to suggest it. I will let him ask it and let the jury say whether or not it is being done for the purpose of hastening it along, or for the purpose of suggesting what the witness should say." Solicitor, questioning defendant's witness: "You have been convicted for making whisky several times, haven't you?" The defendant *Page 630 objects. The Court: "I sustain the objection. I do that and I want to explain that Mr. Monroe, it is not because I am leaning against you, but you know the state has to be awful particular, and you can let the defendant run anywhere he wants to, but you can't the state. I doubt if you can let the state ask the defendant's witness that. it is a funny rule, but they are so technical about those things."

To this remark defendant objected. To this objection the court stated:

"Well, the solicitor objected to your asking the state's witnesses if they hadn't made it, and he asked that question, and I sustained your objection, and I say in that respect it looks like I am favoring you over the state, and I am doing it merely to be sure that the defendant gets the benefit of every doubt in my mind as to the legal question. I am giving you that advantage over the state."

The "heckling" of counsel by the presiding judge is so prejudicial to the defendant's cause as to work a reversal of each instance where the question is properly presented. In this case, however, no exceptions were reserved to the adverse rulings of the court; and therefore the questions argued in brief are not presented for review.

There were no exceptions reserved to the oral charge of the court, and no motion for a new trial.

The judgement must be affirmed.

Affirmed.

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