Appellant insists that the testimony does not show that the officers found intoxicating liquor at the still on the occasion of their raid. We quote from the testimony. Ben Chapman testified:
"There was some whisky there. There was some stuff in the pot and a fire under the pot. They had some whisky there in a fruit jar * * * I saw some whisky there. * * * Mr. Cooper had the whisky out there at the still when I saw it first. I don't know where Mr. Cooper got the whisky. I don't know whether it was made by that still or not."
Mr. Cooper said:
"They had a complete outfit out here. It was fired up and the still was running whisky in a fruit jar. * * * I saw the whisky running out in a very small stream. I know it was whisky."
Witness Hays testified:
"I found that still set up and in operation, a fire was under it and mash in the pot and it was running. I saw a jar sitting under the mouth of the flake stand and a fire under the pot. Directly Mark (appellant) came around and disconnected it and I went back and put it up again and Mark said: `Now, you are making whisky and not me.'"
This evidence satisfactorily shows not only the presence of whisky but its manufacture. This court held in many cases that whisky is intoxicating liquor. We are still of the opinion that the finding of another still near the place where appellant was operating one, was admissible.
Appellant complains that we erred in stating that the trial court heard evidence at the time he overruled the motion for new trial. We quote from the order overruling the motion for new trial: "The court having heard said motion, and the evidence thereon submitted, is of the opinion that the same should be overruled." We have again reviewed the testimony and regret our inability to agree with appellant's contention that it was not sufficient to justify the conclusion of guilt.
The motion for rehearing will be overruled.
Overruled. *Page 276