Appellant earnestly urges that we were wrong in our opinion wherein we said that the rejected testimony of the witness Norton was apparently but a mere conclusion. The witness Norton lived in the vicinity of the appellant and it was a *Page 653 defensive theory evidently that if appellant had been very much engaged at the still where he was arrested and upon which it was asserted by the State he had been engaged in the manufacture of liquor, that Norton would have missed him. The very statement of the proposition that one undertook to say that if his neighbor had been engaged in anything that took him away from home long enoug hto engage in the manufacture of liquor, he would have missed him, makes apparent the soundness of the conclusion announced in the original opinion. He might have missed him or he might not. It might have taken some time to make short trips down to the still or it might not. Such testimony would clearly be a conclusion.
Nor are we able to agree with appellant that the cross-examination of his witness Williams was not legitimate. Williams was stopped early on Sunday morning as he was approaching the still in question and on this trial his testimony appears in conflict not only with that of the officers but also in some material matters with that of appellant himself. We would not think it incompetent to show that this witness was a frequenter of places where liquor was illicitly being manufactured. Such testimony would shed light on the motive, the interest and the bias of the witness.
We regret our inability to agree with appellant in his insistence that he should not have been asked if he did not tell Harve Robinson that if he would make some whisky he, appellant, would furnish the still. Admissions and statements on the part of appellant indicating his approval of or willingness to engage in the illicit manufacture of liquor would certainly be admissible in a case of circumstantial evidence wherein he was charged with such manufacture. We think the evidence sufficient to justify the conviction. The still was found by parties who were evidently hunting at night and who made a report of the same to the officers, who began watching the place early the following morning. A man named Nelson was seen to approach the still, and upon reaching it there was a keen whistle, following which another man was heard to ride up on horseback, get down and come to where the still was located. When examined a short time before, the still had been in operation, but when the officers went up to it on the occasion of the arrest of appellant, Nelson was engaged in soldering a portion of the still and appellant was holding it while Nelson worked on it. The hands of both were black and dirty, apparently resulting from contact with the soot and parts they were engaged in working upon. The case was fully submitted upon the law of circumstantial evidence, and in our opinion the jury were justified in concluding appellant a party to the manufacture of intoxicating liquor.
The motion for rehearing will be overruled.
Overruled. *Page 654