Batey v. State

• Decision Date: 13 January 1951
• Citation: 27 Beeler 592,235 S.W.2d 591,191 Tenn. 592
• Parties: BATEY v. STATE. 27 Beeler 592, 191 Tenn. 592, 235 S.W.2d 591
• Court: Tennessee Supreme Court

Page 591

235 S.W.2d 591

BATEY v. STATE.

27 Beeler 592, 191 Tenn. 592, 235 S.W.2d 591

Supreme Court of Tennessee.

Jan. 13, 1951.

Solon Fitzpatrick, Carthage, for plaintiff in error.

Knox Bigham, Asst. Atty. Gen., for the State.

BURNETT, Justice.

The plaintiff in error was convicted of manufacturing intoxicating liquors with punishment fixed at a fine of $250.00 and a ninety day jail sentence, from which he appeals.

The indictment is laid in two counts, the first charges a violation of Code Section 11246 which makes it a misdemeanor 'to manufacture or attempt to manufacture any intoxicating whiskey or brandy' and the second count is based upon Code Section 11248 which makes it a misdemeanor for the assemblying of apparatus for the purpose of manufacturing whiskey and brandy.

The case was first tried in April, 1950, when the plaintiff in error plead not guilty and after hearing the proof, the jury was unable to agree and a mistrial was declared. The case then came on to be tried the second time in July, 1950, when the plaintiff in error then moved to quash the indictment which motion was overruled and then he again entered his plea of not guilty. The proof was heard, the jury charged and it was on this second trial that the plaintiff in error was found guilty from which this appeal comes. There was no motion made by the plaintiff in error at this second trial to withdraw the plea of not guilty that he had formerly made at the preceding trial.

The record shows that on December 4, 1949, four officers raided a still in Smith County. The still was located beside a rock fence which was about as high as a man's shoulders. These officers, prior to going to this still, had been informed of its whereabouts and shown its location by a man by the name of Owens and as a result of this information they had secured a search warrant prior to making the raid. The officers divided themselves into two groups and approached the location of the still from opposite directions. When they arrived in close proximity to the still, two of the officers being about 30 or 40 feet away, they saw the plaintiff in error stopped over doing something about the still. Just in almost a second he raised up and saw the officers and then ran. He ran in the direction of the other two officers who were within 75 or 80 feet of him. All four officers testify that the plaintiff in error was the man they saw at the still. Two of these officers had known the plaintiff in error prior to this time and positively identify him as the man whom they saw at the still.

These officers found at the still a 75 gallon copper still pot, two 50 gallon mash barrels, 100 pounds of sugar, and some fire, branding iron, etc. One or more of the officers were asked if this beer or mash that they found in these barrels was 'for the purpose of making whiskey?' The answer without equivocation, was that it was for this purpose.

As heretofore said the man at the still who has been identified by the four officers as the plaintiff in error, ran up a ravine and escaped arrest at the time. The officers not being able to catch the man who ran from the still, went by the home of the plaintiff in error and he was not there. They left word with his wife for him to come into the court house. On the following day the plaintiff in error reported to the sheriff at the court house and was then placed under arrest.

In addition to the four officers definitely identifying the plaintiff in error as the man whom they saw at the still, another witness, a man by the name of Owens, says that he saw the plaintiff in error hauling a still on a wagon belonging to Owens a few days prior to the raid and that he had told the sheriff that the plaintiff in error had this still there. This man Owens also says that he saw the plaintiff in error at the location of the still a few days before and saw him stooping over one of the barrels with the cover off and doing something about it.

The plaintiff in error takes the stand in his own behalf and denies that he was the party who was at the still or that he knew anything about the still. He is supported in this fact by one or two of his neighbors who testify that all during this afternoon on which this raid was made that the plaintiff in error was at their home. He is also supported in this by his wife. He denies that he had on the kind of clothes that the officers described his wife likewise supports him in this fact. Of course in cross-examination of these various alibi witnesses the alibi is somewhat weakened by showing discrepancies in their testimony.

One insistence is that the evidence preponderates against the verdict. We in our discussion of this feature of the case bear in mind the well established rule that here the presumption of innocence vanishes and a presumption of guilt attaches. The burden here is on the plaintiff in error to show that the evidence preponderates against the verdict. Hale v. State, 179 Tenn. 201, 164 S.W.2d 822; Mahon v. State, 127 Tenn. 535, 539, 156 S.W. 458.

Another well established rule must be kept in mind, this is, that the jury has seen and heard all witnesses for both sides and after seeing and hearing them has determined these issues against the plaintiff in error. Their credibility has thus been determined. McGhee v. State, 183 Tenn. 20, 23, 189 S.W.2d 826, 164 A.L.R. 617; Ferguson v. State, 138 Tenn. 106, 109, 196 S.W. 140.

When we consider this feature of the defense we are well satisfied that the plaintiff in error fails to sustain his insistance that the evidence preponderates against the verdict of the jury. We have very carefully read this record and to our minds the evidence sustains the conviction rather than preponderates against it. The four officers positively identify the man they saw, as the plaintiff in error; this is supported by the testimony of the witness Owens. Even though Owens was mad at the plaintiff in error his testimony that the plaintiff in error was the one seen hauling part of the still there and as the one who had been seen by him at the still a few days before was obviously a question for the jury. The jury had both parties before them and knew all of these things and they accredited Owens. We see no reason to discredit him here.

It is next very strongly insisted that the trial court erred in overruling the motion to quash the indictment. In the first place we think that the trial court was not in error in overruling this motion to quash, because we feel that the indictment presented a legal case against the plaintiff in error even though it might have been inartificially drawn.

The first count of the indictment charged, among other things that 'within the last twelve months in the County and State aforesaid, did unlawfully manufacture and attempt to manufacture in this State, intoxicating...