ON PETITION FOR REHEARING. The appellant petitions for a rehearing in this cause, and alleges error of the court in holding that there is some evidence to show that the appellant had in his possession intoxicating wine and home-made beer, and some evidence tending to show that he made it or assisted in the manufacture thereof.
We have re-examined the evidence in the case and find that the evidence connecting the appellant with the manufacture of home-made wine which the officers testified was intoxicating, comes from the appellant, himself. The officers testified that home-made wine, which was intoxicating was found in a large container in appellant's house. And the testimony of appellant in regard to this wine, was as follows: "Q. What was this that they claimed was wine? A. Just oranges and lemons; that is about all you can make out of it. It had only been made two days. Q. Only two days old? *Page 555 A. That was all. Q. Was there any yeast in it? A. No. Q. Was there any alcohol in it? A. No, sir."
Appellant insists that Mrs. Slick admitted sole responsibility for the preparation of the home-made wine, yet the testimony of the appellant himself, describing the contents or composition of the wine, that it was only two days old and that there was no yeast in it, and no alcohol, is evidence from which the trial court could infer that the appellant had something to do with the making of it.
It is contended by appellant that we must construe this evidence on the presumption of appellant's innocence. This is not the law. Until conviction the defendant is presumed to be 4. innocent and all the evidence must be construed upon the theory that he is innocent, but after conviction and judgment then the presumption is in favor of the judgment of the trial court. And in ascertaining whether the finding of the trial court is sustained by sufficient evidence, this court will consider only the evidence most favorable to the state, with the inferences and conclusions to be drawn therefrom.
It is also argued by the appellant that the testimony of the officers who testified that the wine contained sixteen and forty-three one-hundredths per cent of alcohol cannot be 5. relied on, especially as it does not show that any of the wine was analyzed or kept for examination to ascertain the alcoholic content. But the evidence of the officers is in the record and it was the province of the trial court to believe or disbelieve it, and the conclusion at which the trial court arrived cannot be disturbed by this court on appeal.
There is no evidence tending to connect the appellant with the making of intoxicating beer, and the original opinion is modified to that extent.
The petition for a rehearing is denied. *Page 556