Appellant is dissatisfied with our holding against him in his contention that this is a case of circumstantial evidence. The facts have again been carefully reviewed. In addition to those stated in the original opinion, attention is called to the fact that the state witnesses testified that they saw appellant dipping mash out of a barrel and carrying *Page 387 it to the still just prior to the time of his arrest. A witness testified that appellant kept coming with a bucket to the mash barrel and getting the mash and carrying it to the still. The identification of appellant was positive. The testimony as to his personal possession of, and the exercise of care, control and management of the mash, was positive. We see no reason for believing the case one of circumstantial evidence.
It is urged that we did not consider appellant's second and fourth bills of exception. Said bills complain of the charge of the court, asserting that the court should have told the jury that if they had a reasonable doubt of the fact that the person seen carrying the mash from the barrel to the still was appellant, they should acquit; and the further proposition that if the jury had a reasonable doubt of the fact that appellant was at another and different place they should acquit. That appellant was at the place is unquestioned. The officers arrested him there. The officers testified positively that appellant was the party seen by them carrying the mash. Appellant admitted being at the place where the still and mash were located, but claimed that he had just arrived, and had no connection with said articles. The court gave the jury an affirmative instruction upon this affirmative defense. He told them that if they believed appellant had nothing to do with said mash or still, was not exercising possession or control of said property, but was merely a bystander and had just happened up there on his way to Gus Gipson's place, then the jury should acquit, and if they had a reasonable doubt as to any one of said propositions, they should acquit him; and further, if they had a reasonable doubt as to defendant being at the place raided by the officers at said time, they should acquit. This seems to us to fully present the defense relied upon, and the motion for rehearing will be overruled.
Overruled.