Appellant urges at length in a motion which shows research and investigation of the authorities, that we erred in holding that the testimony made out the state's case. Irrespective of whether the witnesses called the liquor sold by appellant beer, stuff, bottles or what not, it is perfectly plain from the record that a number of bottles of the "stuff" or "beer" sold by appellant were submitted to a chemist and by him analyzed and its alcoholic content found to be considerably more than 1 per cent by volume. As stated in the original opinion, the offense charged was the sale of liquor containing more than 1 per cent of alcohol by volume. It would be immaterial in any case, where this was the charge, what the liquor sold might be called or named. The test would be the presence of two elements, viz.: the sale of such liquor, and the amount of its alcoholic content by volume. These two elements being proven, the state's case was abundantly made.
Appellant also renews his complaint directed at our ruling on the proposition of misconduct of the jury, and the testimony given by the jurors introduced upon the hearing of the motion for new trial has been carefully sifted. Setting it forth at length would but demonstrate the correctness of our holding that it was in a condition of conflict. No testimony appears which supports appellant's contention, but that it is combated by other testimony to the contrary. A reconsideration of same leaves us in no doubt of the correctness of our decision in this regard. While there was apparently a reference to appellant's failure to testify, it was promptly checked and not again referred to. While there was an inquiry as to whether appellant had been previously convicted, it was after the verdict had been agreed upon and before the jury had returned same.
A juror said it seemed to him as though some one said appellant ought to be given five years on general principles, but this *Page 632 juror was not corroborated, and the juror to whom this remark was attributed testified positively that he made no such statement. The case is brought well within the general rule that the determination of issues of this character upon which the testimony appears contradictory, is primarily for the trial court — whose conclusion will not be disturbed by this court unless it is believed to be an abuse of his discretion.
Believing the former opinion correct, the motion for rehearing is overruled.
Overruled.
ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.