Opinion
No. 32274.
June 8, 1936.
1. INTOXICATING LIQUORS.
Evidence that defendant was seen standing with one hand on still which was not on his land or close thereto held insufficient to sustain conviction for owning or possessing still or an integral part thereof (Code 1930, section 1993).
2. CRIMINAL LAW.
Although evidence was insufficient to support conviction for owning or possessing a still or an integral part thereof, case would be remanded where defendant had not requested peremptory instruction at close of evidence (Code 1930, section 1993).
APPEAL from circuit court of Winston County. ON. JNO. F. ALLEN, Judge.
Z.A. Brantley, of Louisville, for appellant.
This court held in the case of Grice v. State, 150 So. 659, under an indictment similar to the one here presented that the proof must be strict and the facts applied with utmost caution before they can be brought within the statute prohibiting possession of integral parts of a still.
We feel and submit in all seriousness to this court to take the testimony as a whole in this case without any criticism on the part of the learned presiding judge who tried the case, the state failed to make out a case as required by our criminal law and the constitution which provides that he shall be tried by an impartial jury and proven guilty beyond a reasonable doubt in the county where the offense was committed.
E.R. Holmes, Jr., Assistant Attorney-General, for the state.
The case of Ashley v. State, 150 Miss. 547, 117 So. 511, is controlling in the instant case. In that case not only did the evidence, when examined, show that the vessels and appliances found were parts of a still within the meaning of the statute, but also the facts and circumstances were sufficient to show that the defendant was possessed of the outfit. Further authority for the state's contention that the evidence in this case is sufficient to sustain a conviction is Washington v. State, 152 Miss. 154, 118 So. 719, and Armstrong v. State, 152 Miss. 622, 120 So. 574.
The indictment here was brought under section 1993, Code 1930, and charged that appellant "did then and there, knowingly, willfully, unlawfully and feloniously own, have in his possession and under his control an integral part of a distillery commonly called a still," etc.
There was no evidence of ownership of the still. It was being watched by the officers, witnesses for the state, and while they were shifting their position, when they again sighted the still, they saw appellant standing thereby with one hand on it. The still was not on appellant's land or close thereto. Appellant saw the officers, ran, and evaded arrest for some days. This evidence is wholly insufficient to sustain a conviction for owning or having in possession a still or an integral part thereof.
The appellant moved to exclude the evidence when the state rested its case, which motion was, by the court, overruled, and thereupon appellant and other witnesses testified, in his behalf, to an alibi as a defense. At the close of the case, he did not request a peremptory instruction, and, therefore, the case must be remanded.
Reversed and remanded.