No. 11,671.

#### Buschman *v.*The People.

Decided October 4, 1926.

Plaintiff in error was convicted of having in his possession and operating a still for the manufacture of intoxicating liquor.

*Affirmed.*

*On Application for Supersedeas.*

1. Criminal *Law*— Verdict—Conflicting *Evidence.*A verdict based on conflicting evidence will not be disturbed on review.

2. Appeal and *Error*— Instructions—Assignment. Error should be assigned on the giving of alleged erroneous instructions, if they are to be considered on review.

3. *Evidence*— Circumstantial—Instructions. Objections to an instruction on circumstantial evidence, overruled.

4. Appeal and *Error*— Harmless *Error*— Circumstantial *Evidence.*There being sufficient direct positive evidence to sustain a verdict of guilty in a criminal case, an instruction on circumstantial evidence, if erroneous, is not prejudicial.

*Error to the District Court of Grand County, Hon. Charles E. Herrick, Judge.*

Mr. George H. Lerg, for plaintiff in error.

Mr. William L. Boatright, Attorney General, Mr. Jean S. Breitenstein, Assistant, for the people.

*Department Three.*

Mr. Justice Campbell

delivered the opinion of the court.

.Dependant Buschman was convicted of the statutory crime of operating and knowingly having in his posses*174sion a still, used, designed and intended for the manufacture of intoxicating liquor. He brings error. The only errors assigned are that the verdict is contrary to the law and the evidence; that prejudicial, inadmissible evidence was improperly admitted over the defendant’s objection; that admissible evidence offered by defendant was erroneously rejected. The only errors argued on this application are that the evidence is insufficient, which is within the written assignment; and'that the jury was not correctly instructed as to the law of circumstantial evidence, which is not a part of the assignment.

It would be useless and an unnecessary hardship on the defendant to grant this application for a supersedeas for we are convinced, as the result of reading the entire transcript, that the defendant had a fair trial, that no prejudicial error was committed by the trial court in its rulings, and that the evidence is amply sufficient to sustain the verdict and sentence pronounced thereon. The testimony of the sheriff of the county and his two deputies uphold the charges of the information. The testimony of the defendant, though it is contradictory, was not believed by the jury. The only question of importance is one of fact and it was resolved by the jury against the defendant and we cannot disturb its finding.

The alleged error in the instruction as to the law of circumstantial evidence, which is said in argument to be erroneous, is not included in any of the errors assigned; but, if it was properly before us for consideration, the objection to a similar instruction has been decided against the defendant’s contention in the case of *Conferti v. People,*79 Colo. 666, 247 Pac. 1065. Aside from this, the direct and positive evidence of the witnesses for the state is sufficient to sustain the verdict. The application for supersedeas is denied and the judgment affirmed.

Mr. Chibe Justice Allen and Mr. Justice Sheaeob concur.