
    ' NEWBILL v. STATE.
    (No. 11314.)
    Court of Criminal Appeals of Texas.
    Jan. 4, 1928.
    1. Criminal law 3=3775(3) — Instruction, if jury had reasonable doubt that at time of alleged sale of liquor defendant was not present they should acquit held sufficient.
    In prosecution for selling intoxicating liquor in which defense was an alibi, instruction that, if jury believed from evidence 'that at time of alleged sale defendant was not present, or if jury had reasonable doubt thereof, they should find defendant not guilty held sufficient.
    2. Criminal lav/ 3=3798(2) — Court’s telling jury that, if they found defendant guilty, they should not arrive at verdict by lot held not error.
    In prosecution for selling intoxicating liquor, court’s action in telling jury that, if they found defendant guilty, they should not arrive at the verdict by any form of lot, such as adding up number of years each juryman favored and dividing whole by 12, held not error.
    Appeal from District Court, Lubbock County ; Homer L. Pharr, Judge.
    Ernest Newbill was convicted for selling intoxicating liquor, and he appeals.
    Affirmed.
    Vickers, Campbell & Schenck, of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.

We find in the record no bills of exception. The facts amply support the verdict of the jury. We are not in accord with appellant’s objections to the charge. The defense was an alibi. The court told the jury that, if they believed from the evidence that at the time of the alleged sale, if any, defendant was not present, or if the jury had a reasonable doubt thereof, they should find defendant not guilty. The state’s testimony to the facts involved was positive. We believe the charge sufficient.

Complaint is made of the court’s action in telling the jury that, if they found the defendant guilty, they should not arrive at their verdict by any form of lot, such as adding up the number of years each juryman favored and dividing the whole by 12. We think the complaint of this without merit.

The’ judgment is affirmed. 
      
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