Chandler v. State

• Decision Date: 07 June 1926
• Docket Number: 25543
• Court: Mississippi Supreme Court
• Parties: CHANDLER v. STATE. [*]

108 So. 723

143 Miss. 312

CHANDLER v. STATE. ^[*]

No. 25543

Supreme Court of Mississippi

June 7, 1926

Division B

APPEAL from circuit court of Leake county, HON. G. E. WILSON, Judge.

Marshall Chandler was convicted of attempting to manufacture intoxicating liquors, and he appeals. Affirmed.

Judgment affirmed.

W. T Weir, for appellant.

Defendant was tried by the circuit court on a void indictment. The supreme court has already held in the case of Bill Ellis v. State, 107 So. 757, that this grand jury was illegally drawn and we submit that in order to give the court jurisdiction the defendant must be before the court by virtue of a capias under a valid indictment; and, therefore, this case ought to be reversed.

The court erred in refusing to give the instruction sought. There was no evidence that any whiskey was manufactured by any one and the crime was not proved. In fact, the very witnesses for the state show that there was no whiskey made or distilled. It was highly prejudicial to give an instruction authorizing the jury to find him guilty of attempt. Now if the proof had shown that the defendant committed some overt act towards the commission of the crime, there might have been some grounds for refusing the instruction asked for, but inasmuch as no one could say what the act was, or what he did, there was no proof showing any act.

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

I. Appellant contends that the indictment in this case is void, citing Ellis v. State, 107 So. 757. The indictment in this case is good and valid on its face. There is nothing in the record to show the contrary. The law presumes that it is good and that it was returned by a legal grand jury. There is nothing in the record to the contrary. The Ellis case was decided by the facts in the record of that case. That record is no part of the record in the instant case and it cannot be used to supply the facts necessary to show that the grand jury was not a legal one.

There was no motion to quash the jury; there was no motion to quash the indictment. There is nothing in this record to show that there was any irregularity in the grand jury or in selecting the various members thereof who returned this indictment.

II. Section 1257, Hemingway's Code, provides that "on an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense . . . without any additional count in the indictment."

The testimony in this case shows conclusively that the offense charged by the indictment was not completed, but it also shows conclusively that an attempt by appellant and others had been made to commit the crime charged. The only instruction requested by the state authorized the jury to find the defendant guilty of an attempt to commit the crime charged in the indictment. This instruction was authorized by said section 1257.

III. The officers testified that appellant and two others were working at the still; that they could see all three of them at work, but they could not name one specific act and name the man who did this act, because they did not know the men personally and because of the distance and the condition of the territory they were in; but they could tell that the defendant as well as the others was busily engaged in and about the still. The defendant admitted that he was there; admitted that his gun was left at the still by him. There can be no doubt but an attempt to make liquor was committed. The still was complete, the boiler filled with mash, the fire made and several barrels of beer ready to run. The completion of this crime was prevented by the appearance of the officers and the arrest of the parties. See Powell v. State, 128 Miss. 107.

It was not error to refuse the instruction sought because it was not supported by the evidence. The evidence showed that a crime had not been completed, but that an attempt to commit the crime had been made and for this reason the instruction was erroneous. The defendant was not found guilty as charged. The error, if any, was harmless.

OPINION

ETHRIDGE, J.

Appellant was indicted for manufacturing intoxicating liquors and convicted and sentenced for an attempt to manufacture intoxicating liquors. The indictment was at the April, 1924 term of the circuit court of Leake county, Miss. It appears from the evidence that J. W. Phillips, the deputy sheriff, with two constables of the county up near where the still was located, discovered certain barrels of mash a few days before making the raid and, judging as to when the run would probably be made from the state of the mash, appointed a day to return and watch so as to catch the person engaged in the business. On the day fixed they went to the place where the mash was and watched for several hours and decided that no one was coming and poured the mash out and started to return and noticed smoke coming from a pine thicket over the hill, and they went to the top of the hill, and there they could see a still being operated, at which the appellant and two other parti...