We have agreed with appellant's contention in his motion that the questions and answers appearing in his bills of exception Nos. 8 and 9 misled us, and that as we now see it the insertion of the questions and answers in said bills was intended but as a predicate to statements appearing at the end of each bill which constitutes the bill proper. However, we are unable to see any error in either bill when fully considered. Bill of exceptions No. 8 sets out that defense witness Weller swore that one Poetzold had 100 acres of the Britten farm rented, and that Kuehler had 45 acres of the same farm rented; but when the State was permitted to examine said witness to ascertain his means of knowledge of the facts just stated, he testified that he knew it only from talking to Britten and Poetzold. The court then sustained the State's motion to exclude the testimony as being based on hearsay. This was correct. The statement that Poetzold and Kuehler had parts of the Britten farm rented and worked it for themselves, being but the opinion of the witness based on what he had heard said by Poetzold and Britten, neither of whom were witnesses in the case, was not admissible.
Bill of exceptions No. 9 sets out a question propounded by appellant's counsel to his witness Kuehler as follows "Mr. Kuehler, please state what was said between the parties concerning the working of said land?" The State objected to this as being hearsay and the witness was not permitted to answer. We are not clear as to the validity of this objection, if it appear that witness was present when the original contract was made. However, what was said as to the working of the land would seem of no materiality. The State makes no claim that could be affected by the testimony set out in the bill as that which would have been detailed. The State merely asserted that it was appellant's land and that he was working around the premises much of the time, and on the occasion in question went with Poetzold to the house in which the still was found the same day in operation. After remaining there about half an hour appellant came out and left. The officers who came presently found several barrels of mash, a still in operation and a quantity of whiskey. Poetzold was in said house which was locked when the officers got to it. A conversation had by appellant with another witness in which he told said witness that he was making and selling whiskey, and that he would sell to but one man at a time, and that he had a good trade in the Amarillo neighborhood, was also before the jury. The fact that appellant had rented to Poetzold a hundred acres of land on the halves, would in no sense rebut or overcome the State's case. *Page 31
The charge of the court was excepted to because it told the jury that whiskey was intoxicating liquor. This is a correct statement under our practice, in keeping with the facts in this case and the law applicable thereto. Another exception was leveled at that paragraph defining principals. The definition was according to numerous cases decided by us; nor are we able to agree with appellant that in telling the jury in paragraph five of the charge that if they believed appellant "acting with Poetzold" manufactured liquor, etc., that any error was committed. The liquor was being manufactured on appellant's farm; he and Poetzold were working it; they were together in the little house where the still was found for a half hour the morning that the still in operation was located by the officers; appellant gave out information that he was making and selling whiskey. In our opinion a charge on principals was called for.
We find no assumption of the fact in said charge that Poetzold was making whiskey. The complaint at the argument of the State's attorney was fully considered in our former opinion and we see no reason to believe our decision was incorrect in regard thereto.
The motion for rehearing will be overruled.
Overruled.