Appellant says that we erred in upholding the refusal of his special charge No. 5 which is as follows:
"Gentlemen of the Jury: If you believe from the evidence introduced before you in this case, that the equipment found in the possession of the defendant on the day and date alleged in said bill of indictment, was not capable of being used for the manufacture of whisky or other intoxicating liquors and that no whisky or other intoxicating liquor had been manufactured by the use of said equipment, on the date and at the place alleged in said bill of indictment, or if you have a reasonable doubt thereof, you will acquit the defendant, and say by your verdict not guilty."
The record makes apparent the fact that appellant had in his possession equipment for the purpose of manufacturing liquor. We do not think ourselves without justification in saying that apparently he believed it sufficient for the purpose. When the raiding party arrived, the boiler full of first-run liquor was on the fire, a fire was burning under the furnace, a pipe was running through the water keg and into a glass jar or jug sitting by the side of the water keg in which was a quantity of whisky. As we understand it, appellant's contention that the above special charge should have been given is based on the proposition that Mr. Nesbitt, one of the raiding party, said if there was any top on the boiler he did not see it. Mr. Nesbitt was the last of the party to reach the point where he could see the still. Others had gone up before him. Officer Johnson testified that when he reached the still the whisky was dripping from the pipe into the glass container which had in it about a pint of liquor and that from the contents of the boiler, he filled said container. This witness testified that he took the top off the boiler. All the witnesses said the apparatus was carried back to Marshall. The sheriff of the county testified for the State that deputy sheriff Johnson brought with him on this occasion back to Marshall, the top of the boiler and turned it over to him. While we observe that witness Nesbitt was careful to say that he did not see the top of the boiler when he reached a point where he could see the still, yet his testimony was apparently so cogent as to justify the conclusion that appellant was then, as well as theretofore engaged in the making of whisky. We do not *Page 364 think the refusal of said charge materially erroneous under the provisions of Article 743 of our Code of Criminal Procedure.
An affirmative defensive theory can not be based on testimony which is admissible only for the purpose of impeaching a State witness. The defense sought to impeach witness Johnson and as part of its predicate therefor asked him relative to a conversation had by him with Honorable Joe Brown of defense counsel. Johnson admitted that he had misstated matters to Brown, saying that he preferred to do this rather than to tell him that the things he was inquiring about were none of his business. Mr. Johnson testified in response to this attempt to lay a predicate as follows: "Of course, we had a lot of fun about catching Horace Helton again, because we caught him before." There was no objection to this statement of the witness. Complaint is made of the fact that when Mr. Brown was on the stand testifying for the defense, for the purpose of impeaching Mr. Johnson, he was asked on cross examination in reference to this conversation, it being urged that this was proving by hearsay that appellant had been before arrested, and had a bad reputation. We think the matter correctly disposed of in our original opinion upon the proposition that the defense having gone into the conversation, the State was entitled to it all, on the same subject. We would further observe that it is a well known rule that where the testimony is admitted without objection, this deprives a later objection to similar testimony, of its soundness.
Regretting our inability to agree with the contention made by learned counsel for appellant, and believing the case correctly decided in the original opinion, the motion for rehearing will be overruled.
Overruled.