Two officers located a still and concealed themselves until the moon rose, at which time they saw Meguel Hernandez and Manuello Devello at the still and saw them build a fire and heard them conversing but could not understand their language. The officers were 30 or 40 feet distance from the still. Devello saw one of the officers and fled. Hernandez also fled in a different direction, and was followed by one of the officers who finally found him hiding under some bushes. Devello was also arrested under similar circumstances. The still was in operation, making whisky, and a jug of whisky was on hand. One of the officers said that when he first saw the appellant, he was punching the fire *Page 673 under the furnace, and that when called to he ran off and hid in the bushes. The appellant testified that he was on his way to the house of his father-in-law to take him a letter; that he knew nothing of the locality of the still. He said he saw "these boys" and a light there and stopped; that he had nothing to do with the still; that he was not making whisky and all that he did was to run; that he was excited because of the presence of the law.
The only phase of the court's charge against which criticism could justly be addressed is that in which the jury was instructed that the mere presence of the appellant at the time and place of the commission of the offense would not suffice to convict him; that the evidence must go further and show that the appellant, by words or gestures, encouraged the one who committed the unlawful act. The concluding paragraph reads thus:
"* * * so if you find and believe from the evidence that the defendant was merely an innocent bystander, and had no connection with the manufacture of the intoxicating liquor, if any, or if you have a reasonable doubt thereof, then you will give the defendant the benefit of that doubt and acquit him."
The quoted paragraph might have been more happily framed. It is followed in the sixth paragraph with the usual charge on the burden of proof, presumption of innocence and reasonable doubt; and considering the charge as a whole no such fault is found as would, under the facts adduced and in the light of Art. 666, C. C. P., 1925, warrant a reversal of the judgment.
The motion for rehearing is overruled.
Overruled.