¶1 ON REHEARING.
¶2 November 14, 1923.
¶3 — The only contention made by appellant in support of his motion is that we erred in holding that part of the charge of the learned trial judge set out in our opinion to be a sufficient7 and correct presentation of the law applicable to the defensive theory. In this connection appellant also insists that a special charge was refused more amply and correctly pre *638 sented such theory. Reference to the facts before the court reveal that appellant said that he was present at the time the officers came into the place where the liquor was in process of manufacture, but that the only thing he had done was to take.a drink of said liquor, that he had in no way participated in the manufacture of same. Analysis of these facts will show that portion of the main charge complained of and which was held sufficient in our former opinion, aptly presents the law of said defensive facts. The special charge is not correct because it combines the facts of presence of the appellant with acts, which might be construed by the jury to make him a participant in the manufacture and seeks to have the jury told that these facts would not be. sufficient to support a conviction. . The special charge was on the weight of the evidence.
¶4 Being unable to agree with appellant’s contention, his motion for rehearing will be overruled.
¶5 Overruled.