On a former day of this term the judgment herein was reversed because of the refusal of the court to give appellant's special requested instruction in regard to his theory of the case as testified by himself, to wit: that he neither sold the intoxicant nor received any money for it, but only set up or gave the beer to Hammond. It was said in the original opinion that this issue was presented by the testimony, and upon which appellant had a right to have the jury pass under appropriate instructions. A charge is embodied in the transcript, as stated in the original opinion, presenting this matter, which was refused by the court. The State filed a motion for rehearing, upon which certiorari was ordered to perfect the record. Upon return of this writ, we find the court gave the following charge, which was omitted from the transcript: "Gentlemen of the jury: You are charged that if you have a reasonable doubt as to whether or not the defendant received any pay for the beer, it will be your duty to find the defendant not guilty." The court, upon reviewing this question, is of the opinion that this sufficiently presents such issue for a decision of the jury, and this being so, it was not reversible error to refuse the other instruction requested by appellant.
Believing the issue was sufficiently presented by the given requested instruction, we grant the motion for rehearing, and set the reversal aside, and now affirm the judgment.
Affirmed.
[Motion for rehearing denied October 14, 1908, without written opinion. — Reporter.]