delivered the opinion of the court.

So far as the overruling of the demurrer is concerned, and the making of the amendment, and the refusal of the continu*158anee, the opinion delivered in the case of Mackguire v. State, Ante, 151, 44 South., 802, controls. The court committed no error in these respects; but, on the testimony in the case, the court clearly erred in refusing the fourth and fifth instructions asked by the appellant, and for these errors the judgment is reversed and the cause remanded.