
    David Milligan v. State of Nebraska.
    Filed January 20, 1919.
    No. 20671.
    Criminal Law: Sale op Whiskey: Suppioienoy op Evidence. The evidence is sufficient as to the first count, hut insufficient to sustain the charge in the second court.
    Error to the district court for Madison county: William V. Allen, Judge.
    
      Affirmed in part, and reversed in part.
    
    
      Barnhart & Stewart and William L. Dowling, for plaintiff in error.
    
      Willis E. Reed, Attorney General, and Orville L. Jones, contra.
    
   Aldrich, J.

The state of Nebraska prosecutes one David Milligan on two counts for the alleged sale -of whiskey on November 4 and 5, 1917. At the trial the jury returned a verdict of guilty as charged in the information. The defendant appeals. The testimony amply supports the verdict as to the offense charged in the first count of the information, but the second count presents a more serious situation. To this second count, the defendant interposes the defense of an alibi. This defense is recognized in law, and has many times been approved by this court. Then the question presented here is: Did the defendant establish an alibi? Was the evidence sufficient?.

It seems that at, or about, 9 o’clock in the forenoon, defendant started in an automobile in company with his sister to their father’s home, about six miles north of Hartington; that they arrived there about 12 o’clock, noon, and had dinner there; that in the afternoon defendant spent the entire time up to and until 4 o’clock with his brother building a corncrib there on their fatm north of Hartington; that he then ate an early supper with his sister, and started for Norfolk at 4:30 in the evening, and arrived there, according to the testimony of his wife, some time after 6 o’clock. Then defendant’s evidence with respect to an alibi is corroborated by his sister, brother, and his wife; and also by Jacob Nitzemburg. It is clear that defendant was not at the place where he was charged with committing the crime. The record examined and held that the evidence supports the verdict as to the first count in the information, but that the verdict as to the second count is not supported by the evidence. The judgment is affirmed as to the first count, and reversed and dismissed as ■ to the second count.

Affirmed ON first count, AND reversed AND dismissed AS TO SECOND COUNT.  