
    WILSON v. STATE.
    (No. 10576.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1927.)
    1. Criminal law &wkey;l 159(3) — Verdict of guilty on conflicting evidence will not be disturbed on appeal.
    Where evidence in prosecution for manufacturing liquor was conflicting, jury’s verdict of guilt will not be disturbed on appeal.
    2. Criminal law &wkey;>627!/2 — -Refusal to require state’s witness to point out where still was found to others that they might testify thereto held not error.
    Refusal to require state’s witness to go .in company with two other parties and point out place where still was found so that they might testify with reference to its location and surroundings held not error, though witness had refused to point out place before trial, and defense believed it impossible for officers to see party operating still as claimed.
    3. Criminal law <&wkey;996(l) — -Where count charging manufacture of liquor was oniy count submitted, judgment will be corrected to conform thereto-.
    Judgment that defendant was guilty of manufacturing intoxicating liquor and possessing mash and a still will be corrected to adjudge him guilty of manufacturing liquor only where that was only count submitted to jury, notwithstanding verdict finding defendant guilty “as charged.”
    Appeal from District Court, Gregg County; P. O. Beard, Judge. .
    Obie Wilson was convicted of manufacturing intoxicating liquor, and be appeals.
    Reformed and affirmed.
    J. N. Campbell, of Longview, for appellant.
    Sám D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for manufacturing intoxicating liquor, punishment being two years in the penitentiary.

The sheriff had discovered some mash concealed at a certain point, and on the day of appellant’s arrest had sent two of his deputies out to destroy it. When the officers approached the place (according to their testimony) they found appellant and Andrew Stevens operating a still. Both of them fled. Appellant denied being one of the parties. He introduced evidence, which, if believed by the jury, would, have shown that both he and Stevens were at another place and could not have been the parties operating the still. That issue of fact was determined by the jury in favor of the state. This court has no authority to disturb the verdict under the circumstances.

Only one bill of exception appears in the record. It shows that after one of the officers had described the place where he claims to have seen appellant and Stevens operating the still appellant’s attorney asked the witness if the day before the trial he had been requested to go with another party and point out the place, to which witness replied that he had been so requested but had declined to do so, whereupon appellant’s attorney stated that according to the description of the place and its surroundings it was thought to be impossible for the officers to have seen a party operating the still as claimed by them, and counsel requested the court to direct the witness to go in company with two other parties and point out the place in order -that they might testify with reference to the location and surroundings, The court declined this request, and the ruling is urged as error. Appellant has furnished us with no authorities supporting his proposition, and we are not aware of any.

The only count submitted to the jury was that charging manufacture of intoxicating liquor. The verdict finds appellant guilty “as charged,” and assesses his punishment at two years in the penitentiary. This verdict must be considered in the light of the court’s instructions and will be referred to the only count submitted. As the record appears in this court, judgment was entered against appellant adjudging him guilty of “manufacturing intoxicating liquor and possessing mash and a still, and fixing punishment at confinement in the penitentiary for one year.” The judgment will be corrected so as to adjudge appellant to be guilty of manufacturing intoxicating liquor only, and also by confinement in the penitentiary for two years as directed by the jury.

The sentence is also defective. It will be .corrected to conform to the reformed judgment adjudging appellant to be guilty of manufacturing intoxicating liquor and directing his confinement in the .penitentiary for not less than one nor more than two years.

Finding no error in the record, the judgment is affirmed. 
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