¶1 ON MOTION FOR REHEARING.
¶2 In our original opinion we held that the presence of the testimony stated as expected, in the application for a continuance, if same had been present, would have been of no avail under the facts. The testimony was ample to show that appellant and another were present at a still, the boiler of which was full of mash, and under which boiler was a fire burning. The complete apparatus was present. The fact that the process of cooking had not reached the point where there could be any need for the connecting up of the coil, which coil was on hand but unconnected, would not seem in any way to make the equipment insufficient for the purpose intended. We might add, which was not discussed in the original opinion, that the diligence to secure the testimony of the absent witnesses, was not sufficient. In a case where the indictment had been returned some time, the asking for a subpoena on the day before trial, for witnesses who are absent, would hardly measure up to the rules of diligence.
¶3 The motion for rehearing will be overruled.
¶4 Overruled.
¶5 Hawkins, J., absent.