It appearing from the record without dispute that about daylight on the day of appellant's arrest, officers watching in the vicinity of three barrels of mash which they had discovered, heard two shots apparently about a mile and a half apart, and that some time afterward they saw a man approaching said locality, and then about five minutes later saw appellant coming toward said place carrying a gun, and that presently he went back the way he came, and that an hour or so later he appeared bringing a still to said locality, and that he went with same in the direction of the barrels of mash, and that presently, from in the immediate vicinity of said barrels, the officers heard noises as of knocking and working around, and that some time after they went down to the immediate scene and found appellant with two buckets of mash or with one bucket of mash which he was about to empty into *Page 614 the still, coupled with the other facts in testimony and discussed in our former opinion, would seem to render unimportant a statement in said opinion objected to as erroneous, viz.: the inference that appellant had the still with him when he first appeared. If appellant was the man who brought the still to the place, and if he was at it engaged in operations intimately connected with its use and the manufacture of the liquor, it would be immaterial at what time he brought the still to the scene. Both officers testified describing appellant's appearance, his clothes, etc., at the time he came bringing the still, and Mr. Bryant said: "I identified the man carrying the still. * * * It was Mr. Tarver. I am positive of that fact. I know."
We did not discuss the testimony of the defense witnesses for the reason that same only operated to contradict that of the state, and the jury having solved the disputed fact issues against the appellant, we were only concerned in determining whether there was evidence before them which justified their conclusion. It is shown that appellant lived about three-quarters of a mile in a direct line from the scene of the operation in question, and when he first appeared carrying the gun, and went away and then returned with the still, he went and came in the direction of his home. We have carefully considered the entire testimony in the light of appellant's motion but are unable to agree with his contentions, and believe the conclusion arrived at in the original opinion was correct.
The motion for rehearing is overruled.
Overruled.