Appellant cites the case of Berry v. State, 282 S.W. 594, in support of his contention that we erred in not holding this a case of circumstantial evidence. In *Page 450 that case no one saw the accused in actual possession of the mash, etc. In the case before us officers testified that they actually saw appellant dip the mash up from the barrel and convey it to the still. We do not believe this a case of circumstantial evidence.
We see no reason to believe our conclusion that the charge of the court fully submitted the affirmative defense was erroneous. In the special charge asked appellant sought to have the jury told that if they thought his acts done at the still were matters of investigation and out of curiosity, he should be acquitted. The charge of the court embraced substantially the same proposition. The court did not include the word "investigation," but did tell the jury if they believed what appellant did was out of curiosity, etc., they should acquit. Appellant testified that when he picked up the bucket he intended to dip up some of the mash out of curiosity. There may be some substantial difference between the defense submitted by the court and that contained in the special charge refused, but we are unable to grasp it.
The motion for rehearing will be overruled.
Overruled.