Appellant complains because we failed to pass on a proposition which he says in his motion was presented in his assignments of error. We have examined the record, but fail to find any bill of exception to the charge of the court for failure to submit an affirmative defensive theory based on the claim that one Stanley was in possession of the whisky at the time the place was raided by the officers; nor do we find any special charge presenting such proposition. In the absence of such exception we fail to see just ground for complaint, and are of the opinion that any attempt to secure a reversal because such theory was not submitted, comes too late at this time.
Under the facts of this case if appellant had possession of the whisky in question at all, he had the actual care, control and management in person of same at the filling station where it was found. We think the definition of possession as given in the charge of the court was entirely sufficient and applicable to the facts. The facts in any given case must affect and control the charge. If appellant had been absent, and the facts showed him not to have exercised any personal relation to the intoxicating liquor, there might be some room for the complaint.
Believing the former disposition of the case to be correct, the motion for rehearing will be overruled.
Overruled.