ON MOTION FOR REHEARING.
MORROW, Presiding Judge.The rejection of testimony to the effect that one, Monroe Mullens, had said to McClure and Carter that the still at which the appellant was seen, and from which he fled, as *167shown in the original opinion, belonged to Mullens and that Baker had nothing to do with it, is assailed in the motion. The conclusion reached and stated upon the original hearing is deemed correct. The conditions which sanction the reception of evidence of a hearsay declaration of a third party confessing his guilt of the offense for which one accused of crime is on trial, are not regarded as present in the instant case. The purported confession of Mullens of his guilt is not inconsistent with the guilt of the accused. The offense is one in which more than one might participate. Mullens’ ownership of the still is not inconsistent with the possession of it by the appellant. The reception in evidence of that part of Mullens’ statement that “Baker had nothing to do with it”, finds no sanction in any of the precedents so far as we are aware. The declaration of this court in Beckham v. State, 101 Texas Crim. Rep., 487, 276 S. W., 240, as understood, is directly to the contrary. The admissibility of such testimony is influenced by the facts of the case on trial. In the present instance, with unusual care in instructing the jury, the court conserved the rights of the accused. An approved instruction was given upon the law of circumstantial evidence.
In the charge of the court the jury was told in substance that though they might believe, beyond a reasonable doubt, that the appellant unlawfully manufactured intoxicating liquor, unlawfully possessed such liquor, or unlawfully transported it, an acquittal must be accorded him unless they believe, beyond a reasonable doubt, that he unlawfully possessed equipment for the unlawful manufacture of intoxicating liquor.
The term “possessed” was defined in the court’s charge in approved language, and the jury was instructed to acquit the accused unless from the evidence they believed beyond a reasonable doubt that Baker was exercising some care, control or management of the still.. The jury was also told in appropriate language that the mere presence of the accused at the place where the still was operated was not enough to warrant his conviction. The State’s testimony went far beyond the mere presence of the accused, and is regarded as sufficient to support the verdict. The fact (if it be a fact) that the still may have belonged to some one else, or that others may have participated with the appellant in its operation or in its possession, would not necessarily exculpate the accused.
Deeming the treatment in the original opinion upon the other matters advanced in the motion to make proper disposition of them, their further discussion will be pretermitted.
The motion is overruled.
Overruled.