There were two counts in the indictment, the first charged manufacturing, and the second possessing a still. The verdict of the jury found the defendant guilty under the first count of manufacturing. This resulted in an acquittal of the second count, which renders unnecessary a consideration of charges affecting that count.
The appellant insists that the affirmative charge should have been given as to the first count, but the record discloses no such charge as having been asked. There was a general charge requested in writing by defendant applicable to both counts, which was refused, but there was ample evidence to have supported a verdict of guilt under the second count, and therefore a charge instructing the jury generally, if they believed the evidence they must find the defendant not guilty, being alike applicable to the second as well as to the first, was properly refused.
It was not error to permit the sheriff to testify that, in taking and preserving parts of distilling outfits, he marked them so as to be able to separate them later. The marks were in effect memoranda, made by the officer at the time of coming to possession of the captured articles, to aid him in identifying the stills when offered in evidence, and the fact that defendant was not present when this was done is of no moment.
The testimony that plum seed and china berries and pummies are sometimes found in the "mash" from which whisky is made was objected to as a whole. It was relevant in this case to prove that plum seed were sometimes used in this manner, the evidence for defendant tending to prove that there were plum seed in the barrel of beer found in defendant's possession, and no motion was made separately as to the china berries and the pummies. Where a part of the testimony of relevant, a motion to exclude the whole testimony, embracing the good and the bad alike, is probably overruled.
We find no error in the record, and the judgment is affirmed.
Affirmed.