¶1 on rehearing.
¶2 October 22, 1913.
¶3 The State has filed a motion for rehearing, alleging error in reversal of the judgment because, first, the court erred in permitting evidence to be introduced showing the sale of other liquors than that charged in the indictment; second, by failing to give a charge limiting said testimony, and, third, by charging on alibi. The writer does not exactly understand this motion. There is nothing *189 to indicate in the opinion the judgment was reversed because of the introduction of evidence. There was no bill of exceptions. There is an expression in the opinion, in substance, that the writer does no! believe certain testimony ought to have been introduced, but it was not reversed upon that ground, because no exception was taken, and in that connection stated that the testimony ought to have been limited. It was in regard to other sales. It is unnecessary to discuss that matter, but the opinion of the majority did not agree with the writer on that proposition. While in writing the opinion the name of Burwell was mentioned in regard to limiting his evidence, yet the evidence of the other witness was of the same import, and, of course, would be governed by the opinion of the majority in regard to that matter.
¶4 In regard to the other proposition, that is, that the trial court erred in charging on alibi, we are still of opinion there was no error in reversing on that question. There was no evidence showing an alibi either by the appellant or by the State, and the court turned the case upon a false issue when he instructed the jury in regard to alibi.' Appellant denied the sale absolutely. The witness Bonney for the State testified to it positively. The sale could not have been made by appellant if he was not there. He did not raise any question of his absence. Bonney swore positively that he bought the intoxicating liquor from him. Appellant simply denied the transaction in toto. This was assuming an issue in the case which assumed the sale was made and the appellant absent. Appellant did not deny his absence but denied the sale. The opinion of the court in reversing the judgment on the alibi proposition is correct. Upon another trial, under the views of the majority of the court, the admission of the testimony of the two witnesses Bonney and Burwell would not be error.
¶5 The motion for rehearing is overruled.
¶6 Overruled.