The indictment contained two counts. The first count charged the defendant with the offense of manufacturing alcoholic liquors. The second count charged him with knowingly permitting apparatus for the distilling and manufacturing of intoxicating liquors to be located on his premises. He was convicted on both counts. The court instructed the jury, in substance, that if the evidence showed that such apparatus was found on premises "possessed or controlled” by the defendant, the State made a prima facie case, and this would entitle the State to a verdict in its favor unless the defendant showed that the apparatus was there without his knowledge. This charge was excepted to. Conceding, but not deciding, that this charge was erroneous, it does *149not require a new trial, under the facts of the case. The uncontradieted evidence, even eliminating all of the testimony of the witness Charlie Lewis, whom the defendant attempted to impeach, clearly showed that a complete distillery for the manufacture of intoxicating liquors was located on the defendant’s premises with his knowledge, and with, at least, his implied consent. This was established by the unimpeached evidence of the sheriff of the county, who testified to incriminatory admissions made to him by the defendant—which admissions, under the particular facts of the case, amounted to a confession of his guilt of the offense charged in the second count. This testimony of the sheriff was not contradicted by any other evidence, nor even by the defendant in his statement to the jury. Under these circumstances a verdict of guilty under the second count of the indictment was demanded, and the alleged error in the charge, if error, was harmless.
There was ample evidence to authorize the defendant’s conviction under the first count of the indictment, and no error in the charge, as to this count, is complained of.
The remaining special grounds of the motion for a new trial are without merit. The court did not err in overruling the motion for a new trial.
Judgment affirmed.
Bloodworth, J., concurs. Stephens, J., dissents.