In his motion for rehearing appellant insists that the charge of the court did not affirmatively present the theory of his defense. In our original opinion we quoted from the main charge in an effort to show that the charge as a whole did present the defendant's theory. The pith of that theory was that though the accused was admittedly present at the still which was in operation when discovered and visited by the State witness, that he took no part in the illicit manufacture of liquor either by acts or words and was, therefore, not guilty. We have again reviewed the special charges asked by appellant and are unable to conclude that they present more forcibly the affirmative defensive theory than does that part of the main charge quoted in our original opinion. They are too long to set out in full but the gist of each of said special charges is the same as that contained in the paragraph of the court's charge quoted. The appellant's theory of the case, as stated above, is not added to nor more forcibly presented by incorporating in a charge presenting it the additional statements which are to be found in the special charges mentioned.
Being unable to agree with either of the contentions made in the motion, same will be overruled.
Overruled. *Page 409