Appellant courteously but urgently insists that we were in error in not holding that his requested charge on alibi should have been given. These are the facts: There were five stills situated in a sort of ring in a corner of the woods. All were making whiskey. Ezell and Glasscock swore appellant was at the stills, "working among them," "kind of stooped over", etc., and that when they started into the piece of woods appellant started away and that they arrested him in a short distance, one of them saying that appellant started to run and the other that he was walking away when they stopped him.
Defense witness Hicks testified that on the day of appellant's arrest he saw appellant between one and three o'clock on the place of witness, about three-quarters of a mile from where he understood the stills were found. Appellant told witness he was hunting his cows. Defense witness Anderson said he lived on the land of witness Hicks, and on the day of appellant's arrest he saw him between one and two o'clock in the field. Appellant was looking for his cows at that time. From appellant's own testimony it seems that Anderson and Hicks were together when they saw him. Appellant took the stand and said he passed through Hicks' field and saw Hicks and Anderson and went on east, and "was making it over to the old Bellow place. When Mr. Glasscock and Mr. Ezell saw me I was going through the woods. I never had anything to do with those stills down there; * * * I reckon about a minute or two after I was arrested, I told Mr. Glasscock that I was hunting for my cows and it didn't look like they ought to arrest me because I didn't know anything about the outfit and had never seen it before. * * * I didn't see the stills at all that day until after they arrested me and brought me down there." It thus appears neither in his own testimony nor by that of any other witness does appellant dispute the proposition that he was arrested where the officers say he was, in close proximity to the stills. If when arrested he was a short distance from them, this would not call for a charge on alibi. The issue is, was he the operator of the stills, and had he been there just before he was arrested? We regret our inability to agree with counsel that the refusal of the charge on alibi was error. Appellant presented to the trial court a special charge which must have been deemed by him to present his defensive theory, which was given by the learned trial court. In same the jury were told that his presence *Page 163 at the still was not sufficient alone to form the basis for a conviction, and that if the jury had a reasonable doubt as to whether or not the defendant's presence at the stills resulted from a search for his cattle, and that was his only purpose in being at the stills at the time of his arrest, or if they had a reasonable doubt thereof, they should resolve this doubt in his favor and return a verdict of not guilty. This we think adequately presented the only defensive theory raised by the testimony.
The motion for rehearing will be overruled.
Overruled.