Anderson v. State

• Decision Date: 26 March 1923
• Docket Number: 23181
• Citation: 131 Miss. 584,95 So. 637
• Court: Mississippi Supreme Court
• Parties: ANDERSON v. STATE

95 So. 637

131 Miss. 584

ANDERSON v. STATE

No. 23181

Supreme Court of Mississippi

March 26, 1923

INTOXICATING LIQUORS. Elements constituting unlawful manufacture "intoxicating liquor" stated.

The liquors, the manufacture of which is prohibited by section 18, chapter 189, Laws 1918 (Hemingway's Code Supp. 1921 section 2163t), are such as are intended for use as a beverage or capable of being so used, and before a defendant can be convicted of a violation of that statute, it must appear from the evidence: (1) That he manufactured a liquor that can be used as a beverage; and (2) that the liquor is one of the kinds specifically designated in the statute, or that it will in fact intoxicate (citing Words and Phrases First Series, Intoxicating Liquors).

HON. C V. HATHORN, Special Judge.

Appeal from circuit court of Lawrence county, HON. C. V. HATHORN Special Judge.

Owen Anderson was convicted of manufacturing intoxicating liquor and he appeals. Reversed and remanded.

Reversed and remanded.

John H. Arrington, for appellant.

We submit, the evidence in this case is insufficient to uphold the verdict of the jury; as the very gist of the offense was whether or not appellant willfully, unlawfully and feloniously made the fermented intoxicating liquor commonly called mash or beer. Neither witness for the state is able to say of his own personal knowledge that the mash or beer found in appellant's smokehouse was "intoxicating." Witness Lowe tasted it and it tasted, "strong and sour" and he believed it was intoxicating. Witness Bourn merely smelt it at the time of the raid and brought a sample and this was exhibited to the jury and which I especially call the attention of the court to the evidence of Mr. Bourn, at bottom of p. 17 of Record, where he admits that the sample submitted to the jury was not intoxicating now, see third line from bottom.

Now, we take it, as a matter of fact, that if this sample of beer saved by the witness, stopped up in a bottle and kept in the jail where it could not be tampered with, was not intoxicating on the date of the trial, February 24, 1922, then certainly it was not intoxicating on the morning of the 15th of January, 1922. In other words, if the alcohol was in the sample of beer when placed in the bottle and corked up on the 15th of January, then it would still be in the stuff February 24th, when Mr. Bourn tells the jury that it is not intoxicating then. Certainly taken all in all, the evidence in this case, falls short of sustaining the charge, and upholding the verdict of the jury. In our opinion a much weaker case than that of Cook et al. v. State (No. 23045), decided December 11, 1922, Advance Sheet, 94 So. 161.

The witness, Lowe, advised appellant to soak his feed for his hogs that were not eating their feed properly, about a week before the raid and in normal weather, would naturally get strong and sour and smell loud, during this time, if put up as honest-to-goodness-hog-feed as appellant swears it was, upon the advice of witness, Lowe. And we submit the case should be reversed and the appellant discharged.

C. E. Dorroh, special agent, for the state.

The detailed statement as to what was found was in rebuttal of appellant's testimony, in which he stated that the mash was for feeding his hogs. It was found, which is a circumstance to show that the mash was not for hogs but for making intoxicating liquor. Appellant is charged with making fermented intoxicating mash or beer and the testimony of the sheriff, which detailed what he found, was to show that it was not hog feed but was mash or beer, as charged in the indictment.

A charge of unlawfully distilling intoxicating liquors can be sustained by circumstantial evidence, just as any other accusation can be. Stewart v. State (Ala.), 90 So. 49.

Evidence that accused was found in possession of whisky and a still unsatisfactorily explained, held to...