Appellant's contention is that the evidence is not sufficient to support the verdict. We have had some difficulty in satisfying ourselves on the question of identification of the bottle of malt liquor analyzed by the chemist as one of those bought from appellant. This arises in part from the fact that a number of bottles were evidently before the jury on this trial, and of course when the witness testified about "this bottle" or "these bottles," it was plain to the jury and trial court what bottle or bottles were indicated, but said language is not clear in the record, when the question of identity is raised. However, careful scrutiny reveals that a bottle which had been analyzed by said chemist, and its contents shown to be malt liquor of 11.70 per cent alcohol by volume — was by said chemist returned directly to the sheriff, and by the sheriff produced upon this trial along with other bottles which seemed to be still full of liquor and that said bottle was one sold by appellant. The bottle whose contents had been analyzed was empty at the trial. Witness McConnell testified that the six bottles of beer gotten from appellant were turned over to him, and by him marked by scratching an E on the top of each bottle. At the time he had another bottle gotten from another party upon the top of which he scratched a P. He turned all these bottles over to the sheriff, who labeled them by pasting on each bottle a name, on the bottle gotten from appellant, the name Etheridge being pasted. *Page 530 While Mr. McConnell was testifying he was handed the empty bottle labeled Etheredge. He said it did not have an E scratched on the top. He further testified "There is not any mark on this empty container that I put on it." Examining a number of other bottles, he said they all had Es on them but this empty one. Handed another bottle he said it was the bottle gotten from the other party and turned over to the sheriff at the same time as those gotten from appellant, and further he said "I had this bottle which is marked 'P,' on top of the other six." This makes plain and puts beyond question the fact that the bottle marked "P" was still full, and still marked "P," at the time of this trial, and therefore it could not be the one sent to the chemist and by him analyzed, for this latter bottle, labeled Etheredge was present and empty at the time of the trial. We can easily understand how the chemist, at the time he analyzed the contents of the bottle labeled Etheredge, might misplace the top, not attaching any importance to it, and this would fully explain the absence from said bottle of any top with an E on it. The presence of a full bottle marked "P" at the trial, however, clarifies the confusion.
The motion for rehearing is overruled.
Overruled.