The land upon which the mash, still, etc., involved in this case, were located, — was unquestionably not owned by or under the control of appellant. The affidavit set out that the land was the property of one Kelsoe, and the warrant had by the officers directed the search of the property of said Kelsoe, and it was in testimony that the place where the still, mash, etc., were located was on the Kelsoe place. We fail to observe any right on the part of the appellant to object to the introduction of the testimony of the search, under such condition. Nor do we observe under the established facts of this case any possible harm to come in the introduction of an affidavit and a search warrant all of whose allegations were admittedly referring to property under the control of Kelsoe.
It was shown that the house of one Rasco was situated not far from where the still, mash, etc., were located. It was in testimony by a woman who had been staying at the Rasco house that appellant had been staying there from night to night, and that he was there in fact on the night preceding his arrest. He was seen by the officers at about 8:00 o'clock in the morning going to the place where the mash, etc., were located. He was observed to remove the tops from some fourteen barrels of mash and throw the tops over behind the barrels; also to put his face down into each of the barrels, the manifest object being either to test by taste or odor the condition *Page 223 of the mash. One of the officers testified that appellant had mash on his mouth. It was also shown that he had mash on his clothes, shoes, etc. It was shown that he had brought sugar in large sacks to the Rasco home, and that on the day preceding this raid and arrest he had carried away from said house a good sized sack of sugar. A good sized sack of sugar was found at the place where the mash was. As stated in the original opinion, appellant sought to have witnesses testify for him that he was fishing and had hooks set out. He introduced no witnesses to testify to this fact. We have considered each of the contentions made by appellant in his motion for rehearing and find ourselves unable to agree with same.
The motion for rehearing is overruled.
Overruled.