This conviction was for violation of the local option law. The evidence for the State is based upon testimony showing that the alleged purchaser, whose name is Denson, bought whisky from appellant. His testimony, in substance, is that he had been sheriff of Gray County; had visited Amarillo, the home of appellant, on several occasions. That on more than one occasion he had gone in appellant's room and had laid down money on the dresser either before or after he had obtained the whisky. These different transactions were introduced over objection of appellant. Various and sundry reasons are assigned why the testimony was not admissible. The defendant's evidence is to the effect that he never sold Denson any whisky and never got any money from him. That Denson would come to his room and they would take drinks together as he did with any and all of his friends who came to his room, and that if Denson left any money he never heard of it and did not know anything about it. The writer does not believe this testimony was admissible. Appellant was not charged with pursuing the business of selling intoxicating liquor, but was charged with making an isolated sale to Denson. If Denson's testimony was true, and that is the State's case, and he left the money and appellant got it, under the circumstances it would be a sale. The issue then was squarely presented as to whether this occurred or not. It was affirmed upon one side and denied on the other. Sometimes this character of testimony is admissible to make out a case by circumstances, but this is not one of the cases. But be that as it may, this evidence went before the jury evidently upon the theory of system, as the State's witness testifies in each case that he would get the whisky and place the money on a dresser or put it in a drawer. The State's theory evidently being this, it was system, and that this was the manner of selling. Appellant was indicted for violation of the local option law. He was not prosecuted for pursuing the business of selling intoxicants. By statute those are different offenses. An accused ought to be tried on the indictment preferred against him. Appellant's contention was, further, that he never sold any intoxicants to Denson, but that the whisky Denson got from him was a gift. The theory of the State, of course, was this appellant was pursuing a systematic course in selling whisky, and this manner of selling was not a gift but was a subterfuge to cover up a sale. This becomes important, in view of the first bill of exceptions, which recites that the jurors Elliott, Rice, Morris, Hopkins, Brothers, Williams, Loper and Muncy, while being tested on their voir dire, stated they had an opinion that the defendant was guilty of selling intoxicating liquors in Amarillo in violation of the local option laws. Upon these answers defendant challenged each and all of the jurors on account of having said opinion, whereupon the court asked the jurors whether or not they had an opinion as to whether the defendant had sold intoxicating liquors to Sid Denson, the alleged prosecuting witness. The jurors answered they did not, and thereupon the court overruled appellant's challenges to the jurors and defendant excepted; and upon further examination it appeared *Page 100 from the evidence of the jurors Rice, Morris, Hopkins and Brothers, that they were jurors in the case of the State v. appellant in cause No. 1750, on the docket of the court, and that each and all of said jurors had an opinion that the defendant was guilty of violating the local option law in precinct No. 1, Potter County, by reason of being jurors in said cause, and thereupon defendant renewed his challenges to the last named jurors, which was by the court refused and overruled; and after the jury had been examined and attorneys for defendant had made their challenges, and after he had exhausted his challenges, he was compelled to accept on said jury the jurors Elliott, Morris and Muncy, and thereupon requested the court to allow him additional challenges in order to challenge the last named jurors, for the reason the defendant had been compelled to exhaust all of his challenges on more undesirable jurors. This request was by the court refused and overruled. I am of opinion in view of this record, that these challenges should have been sustained. The companion case, No. 1750, is before this court, submitted the same day as the record in this case. This record shows for the State that appellant was selling systematically, as before detailed, and these different matters were before the jury. Upon this the jurors who sat in the other case especially had convicted, and this record shows in another bill of exceptions this to be a fact, and because the sentence in cause No. 1750 is also embodied in this record in another bill of exceptions. Under this view of the case, and this condition of the record, we are of opinion that the court should have sustained these exceptions to the jurors and excluded them. Appellant brought himself within the rule and exhausted all of his challenges.
The judgment ought to be reversed and the cause remanded. I can not concur in this affirmance.