Opinion
No. 29153.
February 16, 1931.
INTOXICATING LIQUORS. In prosecution for manufacturing liquor, instruction on circumstances which would justify jury in finding defendant guilty held erroneous.
Instruction in substance authorized jury to convict defendant of manufacturing liquor if they believed beyond reasonable doubt that defendant was present at still and feloniously aided, assisted, or abetted in manufacture of whisky by pouring sugar into barrels of mash. Under circumstances detailed in instruction, defendant would be guilty only of attempt to manufacture whisky, and not guilty of completed crime.
APPEAL from circuit court of Warren county. HON.E.L. BRIEN, Judge.
Thames Thames, of Vicksburg, for appellant.
The court erred in overruling appellant's motion for a peremptory instruction directing the jury to find appellant not guilty.
There was not one scintilla of evidence to support the conviction of appellant on this charge. There was no whiskey manufactured at the time, and while all preparation had been made by some one, manifestly not by appellant, however, to manufacture whiskey, that at best it was only an attempt to manufacture whiskey and not the manufacturing of whiskey.
Hughes v. State, 96 So. 516.
This court has held repeatedly that the mere presence of a person at a still is not a violation of law.
French v. State, 63 Miss. 386; Williams v. State, 32 Miss. 389; Kimbrough v. Ragsdale, 69 Miss. 674; Potera v. Brookhaven, 95 Miss. 774; Hooks v. Mills, 101 Miss. 91.
Facts must not be assumed in the giving of instructions.
Griffin v. Griffin, 93 Miss. 651; Reed v. Y. M.V.R.R. Co., 94 Miss. 639; Godfrey v. Meridian R.R. Co., 101 Miss. 565; Crawford v. State, 97 So. 504.
N. Vick Robbins, of Vicksburg, for the state.
The case of Hughes v. State, 96 So. 516 is cited by counsel and is relied upon to sustain their position that a peremptory instruction should have been granted in this case. We have examined this case and find no statement of the facts upon which our court based its opinion in that case except that statement contained in the opinion of the court wherein it is said "the evidence simply showed that appellant had a still and was preparing to manufacture intoxicating liquor." When arrested he had manufactured no liquor and crime had not been committed. It does not appear what preparations had been made in this Hughes case or that any manufactured liquor was found at the still. In fact the court's opinion negatives the idea that any whiskey was found at the still.
Wherefore, we earnestly submit, the Hughes case has no application to the case at bar.
The following cases seem to us to be in point and controlling in this case: McElhenny v. State, 135 Miss. 210, 99 So. 674; Williams v. State, 149 Miss. 681, 115 So. 776; and Lofton v. State, 146 Miss. 237, 111 So. 303.
Under the authority of the McElhenny case it was a question for the jury and the peremptory instruction could not have been granted.
W.A. Shipman, Assistant Attorney-General, for the state.
The testimony of the three witnesses for the state is in practical accord to the effect that they found a still properly assembled, charged with the essential elements for the distillation of whiskey with a fire under it, but that no whiskey had actually come from the still; that two negro men and the appellant were present at and around the still; that two of the witnesses saw the appellant empty the contents of a bag, presumably to have contained sugar, into two barrels of mash there at the still, but that the said two barrels were in no wise joined to or connected with the still or necessary to its operation in the manufacture of whiskey. All of the witnesses agree that no whiskey had come from the still at the time the two negroes and appellant discovered the presence of the officers.
It is true here that appellant may be guilty of having in his possession a still, and he may also be guilty of an attempt to manufacture intoxicating liquor, but he was indicted for neither; nor was he convicted of the attempt, as perhaps he might have been under the indictment and the proof adduced.
Goins v. State, 155 Miss. 662, 124 So. 785; Medlin v. State, 143 Miss. 856, 108 So. 177.
Unless the court holds the refusal of the court below to grant the peremptory instruction requested by the appellant to have been error, I submit that this case should be affirmed. Should the court find that the lower court erred in this regard, then the case should be reversed and remanded, the appellant held to await the action of the grand jury that they may inquire of and concerning his connection with an attempt to manufacture intoxicating liquor and/or his possession and control of the still as was done in the Hughes case, supra.
On an indictment which charged that the appellant, Howell Hancock, did then and there willfully, unlawfully, and feloniously manufacture intoxicating liquor, to-wit, whisky, the appellant was convicted and sentenced by the court to serve a term of two years in the penitentiary, and he appeals here.
The material facts of the case necessary to state here are that officers of the law somewhere north of the city of Vicksburg, seeing smoke in the woods, proceeded thereto and saw this appellant and two negroes about a still which had been put in operation. A fire had been built under a two hundred-gallon still which was fully connected with coil and mash, but at the time of the arrest no whisky had run through the coil during that operation. There was found there also about seven hundred gallons of mash and fifteen gallons of whisky in containers which were near the still but not connected with the particular operation, and which came under the view of these prosecuting witnesses. The operation which they witnessed had not resulted in the manufacture of any whisky, but the fact that they found fifteen gallons of whisky in close proximity was some evidence that the parties there had been engaged in the manufacture of whisky theretofore. Appellant, Hancock, was a white man, and when the officers were discovered the negroes ran away and Hancock made no effort to resist or flee from the officers. The testimony shows that the officers had seen Hancock there at the still for about fifteen minutes. One of the officers testified that he saw Hancock pour sugar in a barrel of mash which was not connected with the still. The other witness said he saw him pour some white stuff in the mash.
The defendant's testimony was to the effect that he had moved from a point nine miles away to the adjoining place only an hour or two before he was arrested at the still, and he had gone out to explore the fence when he came upon the still and the negroes and the situation we have described, and denied that he poured any sugar in the mash. In other words, his testimony was to the effect that he was an innocent bystander caught in bad company.
The conviction of the appellant must rest upon the whisky found in close proximity to the still in operation, which had been theretofore manufactured, and not upon the "run" which the parties were in the course or process of manufacturing. It is not shown that any whisky was manufactured by the particular "run" witnessed by the officers, but the facts and circumstances tended to show that whisky had theretofore been manufactured. See McElhenny v. State, 135 Miss. 210, 99 So. 674, and Evans v. State, 133 Miss. 663, 98 So. 440.
The court below gave this instruction: "The court instructs the jury for the state that if you believe from the evidence in this case beyond a reasonable doubt that the defendant Howell Hancock was present at the still in question and feloniously aided, assisted or abetted in the manufacture of whisky by pouring sugar into the barrels of mash, you will find the defendant guilty as charged in the indictment." The evident meaning of this instruction is that the court authorized the jury to find that whisky was then and there manufactured by the operation of the still, and if Hancock poured sugar in the mash in the barrels he was guilty of the completed crime. This is not true; under this state of facts he would be guilty of an attempt to manufacture whisky and would not be guilty of the completed crime. This instruction and this view submitted to the jury by the court are not cured by any of the instructions granted the state or the defendant. It was a plain direction on the part of the court to find the defendant guilty of the completed crime, if he poured sugar in the mash, without regard to all the other facts and circumstances in the case. This is not a correct view of the law and was harmful to the appellant, and for the giving of the instruction the case is reversed and remanded for another trial.
Reversed and remanded.