Bailey v. State

• Decision Date: 31 May 1926
• Docket Number: 25604
• Citation: 143 Miss. 210,108 So. 497
• Court: Mississippi Supreme Court
• Parties: BAILEY v. STATE. [*]

108 So. 497

143 Miss. 210

BAILEY v. STATE. ^[*]

No. 25604

Supreme Court of Mississippi

May 31, 1926

Division A

1. INTOXICATING LIQUORS. Refusal of peremptory instruction and of instruction ignoring law authorising punishment for persons who are accessories to felony was not error, where evidence showed defendant furnished still used in unlawful manufacture of liquor (Code 1906, section 1026 [Hemingway's Code, section 751]).

Where evidence, showed defendant had furnished still used in unlawful manufacture of liquor, refusal of peremptory instruction and of instruction which ignored Code 1906 section 1026 (Hemingway's Code, section 751), authorizing punishment of persons who are accessories to felony, was not error.

2. CRIMINAL LAW. Admission of evidence obtained by unlawful search held not prejudicial, where defendant made no specific objection nor motion to exclude testimony, but obtained instruction eliminating it from jury's consideration.

In prosecution for unlawfully manufacturing liquor, admission of evidence obtained by unlawful search was not prejudicial where defendant made no specific objection nor motion to exclude testimony, but obtained instruction eliminating testimony from jury's consideration.

3. INTOXICATING LIQUORS.

Evidence as to operation of still and defendant's aiding and abetting therein held sufficient to warrant conviction for unlawfully manufacturing liquor.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Tallahatchie county, HON. GREEK L RICE, Judge.

C. W. Bailey was convicted of unlawfully manufacturing intoxicating liquors, and he appeals. Affirmed.

Affirmed.

W. E. Stone and Wells, Stevens & Jones, for appellant.

I. The evidence was insufficient and the defendant was entitled to the affirmative charge. The evidence on behalf of the state, taken at best, shows that the still was found in the swamps several miles from the defendant's home, and while there are some admissions in the testimony that the defendant owned the still or had knowledge of its presence there, and also some admissions that he had sugar, rye and kegs hauled to the still, yet there is no evidence to show that C. W. Bailey ever manufactured or distilled intoxicating liquors or that he ever operated it.

There may have been the utmost preparation and ability and the equipment and the actual intention, but all of these are insufficient. The state must prove beyond a reasonable doubt that Bailey actually made whiskey. The evidence is insufficient to show that Bailey ever made a drop of whiskey at this still. The officers found no liquor and there is no evidence that they captured any liquor which came from the still or which was made at the still, and accordingly the state failed to prove the crime charged.

It is barely possible that one, or more, of the tenants was operating the still on his own account. As emphasizing the argument here made, we are justified, we believe, in stating to the court that de hors the record, one of the tenants was separately indicted for the same offense here charged against Bailey, and that he plead guilty and was sentenced to two years in the state penitentiary and all of this at the same term of court at which Bailey was convicted. It is not enough for the state to show that a still was being operated by the tenants of Mr. Bailey with his knowledge; there must be active assistance. This court has put this question beyond controversy in Stribling v. State, 124 Miss. 141; and Powers v. State, 124 Miss. 425. Therefore, the defendant was entitled to the peremptory charge.

Closely connected with the first proposition argued is the failure of the state to show that any liquid found at the still was fit for use as a beverage or capable of being used as a beverage and, therefore, Anderson v. State, 95 So. 637, applies.

On the one fundamental question as to whether the peremptory charge should have been granted the defendant, we cite Hughes v. State, 96 So. 516 (1923), Anderson v. State (Miss.), 95 So. 637; Parsons v. State (Ala.), 104 So. 556.

II. An attempt to manufacture liquor falls short of the actual consummation of the crime and any evidence of preparation in the case at bar is insufficient to support the verdict of guilty of manufacturing. See State v. Crawford, 21 Ariz. 501, 190 P. 422; Powell v. State, (Miss.), 90 So. 625; State v. Addo (N. S.), 110 S.E. 650, 22 A. L. R. 219.

III. The evidence admitted over the objection of the accused that liquors were found near the home of Bailey was prejudicial and constitutes reversible error. This evidence was incompetent for two reasons. First, the finding of liquor in the cotton patch, or about fifty yards away in high weeds is insufficient to show that Bailey had possession. It is in evidence in this case that Mr. Sage was the actual overseer of the plantations and had charge of the tenants, and that Mr. Bailey was not seen except around the commissary and in the matter of settlements with tenants. Certainly, Mr. Bailey was not plowing the cotton patch where the liquor was found; and, certainly, he had no more possession of the cotton patch than did Mr. Sage or the tenant who was cultivating that particular field. Johnson v. State, 104 So. 352,

In the next place, it was also error to permit hearsay testimony on the part of several witnesses that they were told by a negro that Mr. Bailey said for them not to attend court. Again, this evidence was too remote to show the guilt of Bailey on a charge of manufacturing liquor. The grand jury had not assembled and a great many of these parties being involved in the making and drinking of whiskey around there, very naturally discussed the question of what would be done by the grand jury, and any evidence even direct and positive that Bailey suggested to the tenants not to attend court at a time when he had not been indicted for the manufacture of liquor is too remote and too general to be introduced on the specific charge here under inquiry.

We submit further that any evidence, or damaging admissions or anything in the nature of a confession, was incompetent in this case because the state had failed to prove the corpus delicti. Compare the case at bar with Kidd v. State (Miss.), 102 So. 68.

IV. The Instructions. Instruction No. 2, as granted the state, is manifestly erroneous. In the first place, it undertakes to minimize portions of the testimony and to point out to the jury just exactly what portions of the testimony would justify them in convicting the defendant. It also authorizes the conviction of Bailey if anybody made liquor at the still, either at Bailey's instance or on their own account.

Instruction No. 3 is not applicable to the case at bar. It directs the jury that if the defendant was the owner of the still in question or that he had it under his control and aided, assisted, or abetted others, the jury might convict, if the defendant was never seen at the still. This instruction started out by making it immaterial whether the defendant owned the still or had it under his control. If the defendant did not own it, then there is no evidence in the record that he had it under his control. There is no evidence that it was situated upon land belonging to the defendant, and there is no evidence that he had it under his control unless he owned it.

The instruction is also erroneous in submitting to the jury the proposition that the defendant aided, assisted, or abetted in the operation of the still. There is no testimony that the defendant either aided, assisted, or abetted anybody else in the actual operation of the still. If the defendant hired the road cut, he was not aiding anybody else, according to this record, but himself. If he owned the still, he was not aiding or assisting somebody else in owning it. If he employed somebody else to haul rye, sugar and kegs to the still, these were all acts of preparation and were not acts of operation or consummation. There is no evidence that any agent of Bailey's ever operated the still, and the instruction, therefore, assumes what the evidence does not show beyond a reasonable doubt.

J. A. Lauderdale, Special Assistant Attorney-General, for the state.

I. The evidence was sufficient to sustain a verdict of guilty. The corpus delicti in this case was overwhelmingly proved by competent evidence. The corpus delicti was the fact that intoxicating liquors were manufactured. Defendant was charged with manufacturing liquors and this constituted an unlawful act against him. There is no way under the laws of this state that liquor can be lawfully made. Five or six witnesses testified that they were at the still when it was operating and making whiskey, and one of them testified that he drank some of the whiskey.

The admissions, confessions and statements against interests of the accused are admissible to aid in proving the corpus delicti provided the evidence aliunde the confessions is sufficient to prove that a crime has actually been committed. Patterson v. State, 127 Miss. 256.

There is no proof in the record that appellant was actually and personally present at any time when the still was being operated. In other words, the appellant was not present at the time the crime was being committed. The proof, however demonstrates to a moral certainty that he owned, controlled, managed and financed the still; that he had the road cut out, the pump put down, the still moved to the place, and materials and containers hauled to it; and that he provided for the taking care of the unlawful products of the still. He aided, assisted, abetted and encouraged the commission of the crime. He was properly indicted, tried and convicted as a principal. See section 751, Hemingway's Code; Unger v. State, 42 Miss. 642; Wynn v. State, 63...