Conviction is for manufacturing intoxicating liquor, punishment being two years in the penitentiary.
The sheriff had discovered some mash concealed at a certain point and on the day of appellant's arrest had sent two of his deputies out to destroy it. When the officers approached the place (according to their testimony) they found appellant and Andrew Stevens operating a still. Both of them fled. Appellant denied being one of the parties. He introduced evidence which, if believed by the jury, would have shown that both he and Stevens were at another place and could not have been the parties operating the still. That issue of fact was determined by the jury in favor of the state. This court has no authority to disturb the verdict under the circumstances.
Only one bill of exception appears in the record. It shows that after one of the officers had described the place where he claims to have seen appellant and Stevens operating the still, *Page 674 appellant's attorney asked the witness if the day before the trial he had been requested to go with another party and point out the place, to which witness replied that he had been so requested but had declined to do so, whereupon appellant's attorney stated that according to the description of the place and its surroundings it was thought to be impossible for the officers to have seen a party operating the still as claimed by them, and counsel requested the court to direct the witness to go in company with two other parties and point out the place in order that they might testify with reference to the location and surroundings. The court declined this request and the ruling is urged as error. Appellant has furnished us with no authorities supporting his proposition, and we are not aware of any.
The only count submitted to the jury was that charging manufacture of intoxicating liquor. The verdict finds appellant guilty "as charged" and assesses his punishment at two years in the penitentiary. This verdict must be considered in the light of the court's instructions and will be referred to the only count submitted. As the record appears in this court judgment was entered against appellant adjudging him guilty of "manufacturing intoxicating liquor and possessing mash and astill, and fixing punishment at confinement in the penitentiary for one year." The judgment will be corrected so as to adjudge appellant to be guilty of manufacturing intoxicating liquor only and also by confinement in the penitentiary for not less than one nor more than two years, as directed by the jury.
The sentence is also defective. It will be corrected to conform to the reformed judgment adjudging appellant to be guilty of manufacturing intoxicating liquor and directing his confinement in the penitentiary for not less than one year nor more than two years.
Finding no error in the record, the judgment is affirmed.
Affirmed.