¶1 ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.
¶2 In refusing appellant’s request for leave to file second motion for rehearing, we make the following additional observations to what we said in our opinion on the original motion for rehearing:
¶3 The count on which conviction was had charged a sale of intoxicating liquor to Savage alone. The evidence supported such allegation. Marked money was given to Savage alone with which to purchase whiskey. He carried it to appellant’s place, one Hedgespeth accompanying him. After negotiating for the whiskey and when it was delivered Savage says that, if he be not mistaken, he handed Hedgespeth two dollars of said marked money and that each of them then handed two dollars to the appellant who delivered the single bottle of whiskey purchased to Savage, who further testified: “When I bought the liquor, I put it in my .pocket.” Both Savage and Hedgespeth testified for the State, the latter denying having had anything to do with the transaction either in the way of paying money to appellant or negotiating for or receiving any whiskey. The weight of the testimony thus showed a sale to Savage. The record so showing, and the fact of Hedgespeth’s participation in the transaction being denied by him, and same being left doubtful by the testimony of Savage, we concluded that a charge that if the jury believe a sale was made to Savage, or to both Savage and Hedgespeth, they should convict— was incapable of harm to appellant. We adhere to this view.
¶4*176 In discussing appellant’s complaint in bill of exceptions No. 18 of the reception of certain impeaching statements by witness Fulwiller, in our original opinion we inadvertently used the name of witness Savage where we should have used the name of witness Hedgespeth. The cross-examination of this latter witness showed that he then testified that he had told Fulwiller of his purchase of whiskey from appellant prior to the instant occurrence.
¶5 Leave to file second motion for rehearing is denied.