Appellant strenuously insists that we erred in not reversing this case because the learned trial judge refused to require the State to elect upon which count the prosecution would proceed. The facts in this case do not bring it within the rules requiring the State to elect at the close of its testimony. While the State was introducing its testimony in chief and before it had closed its case, appellant made a motion to require the State to elect. At that stage of the trial the court below declined to grant said motion. When the State had rested its case there was no renewal of the motion or any request that the State be then compelled to elect. Appellant is in no position to complain.
We have again reviewed our former opinion in reference to the testimony of the sheriff concerning a statement made to him by appellant to the effect that he had sold whisky to one Bagby and are of opinion that this matter was correctly decided. The admission of illegal testimony will not require a reversal unless such admission was calculated to injure the appellant or to leave the question of probable injury in such grave doubt as that we are unable to believe the introduction of such testimony harmless. Under the facts of the instant case we deem it altogether unlikely that the introduction of said testimony could have injuriously affected the result of appellant's trial, and the motion for rehearing will be overruled.
Overruled.