Defendant was convicted on a charge of manufacturing whisky, and appeals.
Appellant in his brief concedes that the only question of merit involved in this appeal is the refusal of the trial judge to give at the request of defendant the general affirmative charge. This charge should never be given where there is any evidence upon which to base a verdict of guilt.
In this case there was a whisky still in operation near defendant's house and below his barn in a pasture, fire was in the furnace, the still had been charged, and whisky was running from the worm; there were two men at the still, one of whom was defendant; they were talking to each other; it was in the nighttime about 10 o'clock; some one of the two, or perhaps both, was cutting wood and breaking limbs; both men were watched by the officers for forty-five minutes during which time they were both walking around the still; when the officers made their presence known, this defendant fled and was run some distance before he was overtaken and brought back. This was evidence from which the jury might legally infer, either that this defendant was actually engaged in the manufacture of the whisky or that he was present aiding and abetting.
We find no error in the record, and the judgment is affirmed.
Affirmed.