The opinion
ON REHEARING.
May 16, 1923.
LATTIMORE, Judge.
In a some what caustic motion appellant asks for a rehearing. His first criticism is of upholding the refusal of a continuance by the trial court. Without dispute in this record it appears that the indictment was filed February 25, 1921, and the case first called for trial March 23rd following. An application for a continuance based solely on the absence of one Lelos was granted. The case was set next for July 7th following. Press of business caused a resetting for July 13th. On July 5th subpoenas were first issued for witnesses Taylor, Mexican Frank and Mexican Benito, returnable July 13th. Said process was returned showing Taylor to be in Arkansas and the other two witnesses not found. The only excuse
*390
for not having sooner applied for process for said witnesses is the statement in the bill of exceptions presenting this matter, that “He had used due diligence to secure their testimony; that he had only just heard of the materiality of their testimony.” No authority is cited by appellant nor is any known to us, holding this a sufficient showing of diligence.
Appellant next insists that the testimony was wrongfully admitted as to the fact of finding the apparatus capable of making intoxicating liquor, for that it ivas found on his father’s farm and that he had brothers who lived as near;or nearer to the place of finding than he, and that others also lived on said farm. That this contention is without merit is also obvious and is discussed at some length in the original opinion. Many circumstances pointing to appellant were in evidence. His purchase of a large number of fruit jars in the winter time, his inquiry about other fruit jars, his sale of whisky in fruit jars, the finding of fruit jars in a cave near appellant’s house in which the still and mash were located; his efforts to find out how to solder a tank, the finding of a crudely soldered tank in said cave, his efforts to suppress testimony as to the finding of the cave, his sales of whisky to various parties about this time, his solicitation of sales to others, all point to him as the party manufacturing liquor. Save the naked fact that appellant had a brother living at home with his aged and infirm father, who owned the farm on which the cave and still were found, and that there were negroes and Mexicans living on said farm, there is nothing in the record that even remotely suggests the connection of any other person than appellant with said apparatus. The locus of the still would be a circumstance, strong or weak, depending on the facts of the individual case, but the -admissibility of such fact would not seem subject to objection if such location has any possible probative force as it unquestionably had in this ease.
Complaint is renewed of the admission of the testimony of the sales of liquor by appellant. It would logically appear that one would manufacture liquor in large quantities, for sale. Thirteen barrels of mash were found in the cave near appellant’s home and this would seem to indicate a manufacture of some 'proportions. The more numerous the proven sales the stronger the deduction of such manufacture for unlawful purpose might appear. That the proof of such sales does shed light on the identity of the manufacturer seems too clear to need argument. An illustration: A still is found in the woods, on the commons. No one knows who operated it. Proof that J, who lived in that neighborhood, had made several sales of the kind of liquor apparently made upon said still, would certainly point to J as the operator thereof. Without giving instances this record reflects the fact of a number of sales of liquor by. appellant.
The court told the jury they could not convict appellant of manu
*391
facturing liquor unless they believed beyond a reasonable doubt from the evidence that he was guilty of such offense. _ A special charge that even though the jury believed appellant had sold liquor, they could not convict him in this ease^ unless they believed beyond a reasonable doubt that he had manufactured such liquor, would not seem to clarify the legal issues involved, nor give to appellant any rights dénied him in the main charge, and the refusal of such special charge was not reversible error.
We are urged to revise our holding in regard to the matter of the argument made by the State’s attorney. This was sufficiently discussed in the original opinion. In passing we observe that repeated references to conclusions reached by this court in its opinion as “absurdities” or as “absurd conclusions,” have little place in pleadings and add no weight to written arguments.
The motion for rehearing is overruled.
Affirmed.