Appellant's theory was that his only connection with the whiskey sold by him to one Daniel, was as agent of the latter. Any fact legitimately combating this theory were admissible, and proof that appellant made whiskey in reasonable proximity to the time he sold a quart of it to Daniel, would be held admissible, and especially so in connection with statements made by appellant in substance that he and one Hampton borrowed from each other when customers came and found either one out of whiskey; and also appellant's statement that he would sell whiskey to anybody.
If the court at any time held that appellant could not prove the matters set out in the bill of exceptions appearing on page 45 of the transcript, he evidently repented of this action, for in another part of the testimony of appellant said witness was allowed to testify fully to the facts claimed in said bill to have been rejected by the court at an earlier stage of the trial. The complaint was that the witness was not allowed to testify that he was on a branch near appellant's house and saw nothing to indicate the manufacture of whiskey there. The witness did testify that he was frequently up and down said branch near appellant's house and never saw any fires or cooking, or anything else that looked like he had been making anything on the branch, and never saw a still or smelled any whiskey or choc.
The State's testimony showed overwhelmingly the guilt of appellant. His wife, father, brother-in-law, and wife of said brother-in-law, testified in favor of appellant. The jury are charged with the duty of deciding the conflicting facts. They gave the accused the lowest penalty and we see no reason to disturb their verdict, and believe the case correctly decided.
The motion for rehearing will be overruled.
Overruled. *Page 333