Appellant's motion for rehearing seems to be based on the assumption that our original opinion is in conflict with former holdings in Weaver v. State, 96 Tex.Crim. Rep.,257 S.W. 253, and Belson v. State, 97 Tex.Crim. Rep., 260 S.W. 197, on the question of the necessity of the court to instruct on the law of circumstantial evidence. Whether or not the court is called upon to instruct on that subject must of necessity depend on the facts of the particular case. When the sheriff approached the house he fired into the house twice with a shotgun. Immediately upon the shots occurring a witness saw appellant and one G. C. Ross jump from the house through a window on the opposite side from the officers. Appellant and Ross ran away and were not seen by the officers. This same witness had seen these parties going to the house on the morning of the day the raid occurred. There is no question in this witness' testimony about the identity of appellant as one of the parties who jumped out of the house and fled. What was found in the house has been sufficiently set out in our former opinion. Another witness who seems to have had general charge of the premises upon which the house was situated testified as follows:
"Guy (appellant) and G. C. Ross met me one day and said they were going to make some shinny down there — that is, corn whiskey; and they wasn't going to interfere with me, and wasn't going to give me any trouble whatever. He said they were going to make whiskey down at that house."
Further relating the conversation between him and appellant and Ross, the witness testified:
"When I had the conversation with Guy Richardson and Ross with reference to making whiskey, they did not tell me any certain amount that they had made. They said 'We are making some whiskey here,' or 'shinny' rather, 'and we don't mean to bother or give you any trouble hereafter, with our work going on there.' They did not make any statement as to the amount they had made. The morning that I met Ross and Richardson they had a sack with something in it. It was a tow sack, and *Page 627 it had a bundle of some kind in it. It seemed, as well as I remember, about one-third full, on their shoulder, wrapped up and tied. It was in the evening; it was not in the morning. I could not swear positively what was in that sack, only by what they said. They did not say what was in the sack, but they said what they had been doing, and what they expected to do hereafter, that was making a little shinny. I consider shinny and corn whiskey the same thing. Corn whiskey is what is known as shinny."
We were originally and still are of the opinion that the testimony related took the case out of the class demanding a charge on circumstantial evidence. In Weaver's case (supra) the defendant was positively identified as being present with others eating dinner at a point some seventy-five yards from the point where the still was afterward found in operation. When the still was discovered some one ran away from it. The officer who saw the fleeing party had never seen the defendant before and he was not certain as to his identity, but only expressed an opinion that it was the defendant. It will be observed that Weaver was never identified positively as being closer than seventy-five yards from where the still was operated. This significant language was used by Judge Morrow in the opinion:
"His flight, if in fact he fled, would give much strength to the inference of guilt, and it may be possible, conceding hisidentity as the fleeing man, that the case would be one ofdirect evidence. However, his identity as the man who fled is not conceded. The only witness who throws light upon the subject had no acquaintance with the appellant, saw him but momentarily as he dashed through the shrubbery, saw but a part of his person, and so incomplete was his view that the witness was unable to give any definite description of the person who fled or of any peculiarity in his apparel or movements which would furnish definite identification."
No such uncertainty prevails in the present case. Appellant was positively identified by a witness who knew him well. Because his testimony may have become issuable from a denial of the truth of it by appellant would in nowise change the rule. In Belson's case (supra) the state was evidently relying upon a statement made by the defendant as taking the case out of the rule as to circumstantial evidence. Upon that point this court said:
"We have perceived no direct evidence that the appellant manufactured the whiskey. As stated before in this opinion, there *Page 628 are circumstances which would support such an inference. The declaration of the appellant was not so unequivocal as to bring the case within the purview of one resting alone upon direct evidence."
Believing this case to have been properly decided, appellant's motion for rehearing is overruled.
Overruled.