Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.
A still was in operation out in the woods on a branch. When detected by officers, appellant was on his knees beside said still. He fled, but was overtaken and captured. The whisky running out of the coil was being caught in a glass jar, which was practically full. The still was located on land controlled by Simpson, who testified that he knew nothing of the presence of the still. Appellant took the witness stand and testified that he was going through the woods and came upon the still and was merely examining it. He denied running away from the officers. He also denied that he was on his knees beside the still at any time. He explained his presence in the neighborhood by saying he was going down to look at a plow, and that he saw the smoke of the still and went over to where it was. It is in testimony that appellant ordinarily used a walking stick, claimed by him to be necessary in aiding him to get about, resulting from an accident. He left his walking stick at the still when he ran away. The officers said he ran rapidly. Fresh dirt had been dug out from under the drum, and the knee prints, where appellant was kneeling when the officers came up, were in this fresh dirt, as was also the print of his hands. The still was a complete one with a fire burning under it. Mash barrels were near by. The evidence seems sufficient to justify the conclusion of the jury.
Appellant moved for a new trial upon the ground of newly discovered evidence. When the motion was presented the court heard evidence, which is brought forward in a separate statement of facts. We have carefully read the testimony in this statement, but are unable to find anything therein which appears of sufficient weight to justify us in a belief that if same had been before the jury, a different result would have obtained. Apparently the purpose of the evidence deemed newly discovered was to support the proposition that the still belonged to Joe Posche or his brother. The testimony in said statement of facts consisted largely of the denials by each and all of the witnesses of knowledge of any fact which might lead to the belief that either of the Posches owned the still. We think the motion for new trial properly refused. *Page 259
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.