The indictment was in two counts, the first charging that defendants manufactured whisky and the second the unlawful possession of a still. The court, at the opening of his oral charge, expressly eliminated the first count of the indictment and withdrew its consideration from the jury. This left the second count only, on which the jury found the defendant guilty as charged. This verdict was responsive to the indictment charging an unlawful possession of a still and is sufficient to support the judgment rendered.
We have carefully read and considered each exception reserved to the admission of testimony and the rulings of the court on the motions to exclude and find all of them to be free from prejudicial error.
The principal question insisted on in brief of counsel is the action of the trial court in overruling the defendants' motion for a new trial on account of the misconduct of the sheriff in dealing with the jury pending the trial and during the time the jury was in his custody. The conduct of the sheriff, as alleged in the tenth ground of the motion for a new trial, would present a matter for serious consideration, if there was evidence to substantiate the charge made, but the affidavits of the two defendants that such reports had come to them from reliable sources is mere hearsay and cannot be considered as evidence.
There is no reversible error in the record and the judgment is affirmed.
Affirmed. *Page 306