Evans v. State
| Decision Date | 07 January 1924 |
| Docket Number | 23555 |
| Citation | 133 Miss. 663,98 So. 440 |
| Court | Mississippi Supreme Court |
| Parties | EVANS v. STATE |
January 1, 1920
INTOXICATING LIQUORS. Evidence held sufficient to support conviction for unlawful manufacture.
The defendant was convicted of the charge of manufacturing intoxicating liquors. The evidence for the state showed that the witnesses for the state discovered a still such as is usually used for the manufacture of intoxicating liquors which still had every appearance of having been very recently used. From thirty to forty feet from the still were found vessels containing intoxicating liquors of the character usually manufactured on such stills. The state's witnesses secreted themselves near the still and watched for two or three days. The first or the second day after the still and the intoxicating liquor were discovered the defendant appeared with two negro helpers and proceeded to repair the still and otherwise make preparations indicating a purpose to manufacture intoxicating liquors on said still. Held, the evidence was sufficient to sustain a conviction of the defendant for manufacturing the liquor found in the vessels on the day the witnesses for the state discovered the still.
On suggestion of error. Overruled.
On suggestion of error. Overruled.
For former opinion, see 98 So. 65.
Suggestion of error overruled.
W. A Blair, for appellant.
The court erred in not sustaining the motion of the defendant and appellant for a peremptory charge to the jury directing them to find a verdict of not guilty. This defendant was charged with manufacturing intoxicating whisky, he was not charged with owning a still, he was not charged with attempting to manufacture whisky, but with the direct charge of manufacturing intoxicating whisky. There is not a scintilla of evidence to show that any whisky was ever manufactured on this still or by the defendant on this still or any other but on the contrary all witnesses for the state swore that they did not see appellant manufacturing any whisky. They do say that they saw him at the still.
In the case of Anderson v. State, 95 So. 637, the syllabus of the case reads as follows: "Before a defendant can be convicted of a violation of that statute there must appear from the evidence; first, that he manufactured liquor that can be used as a beverage; second, that the liquor is one of the kind specifically designated in the statute, or that it will in fact intoxicate." Neither of these two propositions did the state prove in the case at bar, and for those reasons this case should be reversed.
We especially call the court's attention to the case of Hughes v. State, reported in 96 So. 516, which is not yet in book form, but is to be found in the Southern Reporter Advance Sheets of July 14, 1923. This case is very similar to the case at bar. We quote from the syllabus as follows: "Evidence showing simply that defendant had a still and was preparing to manufacture intoxicating liquors but had not manufactured and when arrested would not support conviction for manufacturing."
In the Hughes case in the opinion of the court the Anderson case just cited above, is especially referred to; and using the wording of the court in the Hughes case we find as follows: "The evidence simply showed that appellant had a still and was preparing to manufacture intoxicating liquors when arrested by the sheriff, he had manufactured no liquor, the crime had not been committed."
We call the court's attention to the evidence for the state as we have especially done in our brief, that all witnesses testified that the still had not been connected up, nor had any whisky been manufactured on the still and the defendant was only found at the still one time and a very short time at that. The Hughes case in our judgment is a stronger case for conviction than the Evans case at bar, and if the court, we respectfully submit, intends to let the Hughes case stand, then in view of the Hughes case and the Anderson case that this Evans case should certainly be reversed.
S. C. Broom, Assistant Attorney-General, for the state.
It is the theory of the defense that inasmuch as the defendant was not seen to have manufactured the identical whisky found in the buckets there the night before the raid was made, and that whereas the work in and about the still that was being done by the defendant herein during the time they were watching him was in the nature of repairs, or improvements in the installation of the copper coil of pipes leading through the trough of water, that, therefore, the proof fails to show that he was actually guilty of the manufacture of liquor.
An examination of the record will disclose that this was a more or less pretentious outfit, being rather substantially constructed. It was not an ordinary tin can portable outfit which is sometimes used by negroes and others in the manufacture of a small quantity of intoxicating liquor. The proof shows that this still had actually been operated before at that identical place because there had been a fire in the furnace, and there was some manufactured liquor there.
It is quite evident that some liquor had been manufactured there already, and that they were getting ready to manufacture a large quantity of it, so that the proof is most conclusive that the defendant was guilty of an attempt to manufacture liquor, but they say that we do not prove that he actually manufactured that which was in existence there, but the proof as to this is as follows: First, the location of the still near appellant's home; and, Second, that all paths lead towards his house.
In view of all these facts, and the further fact that no one was seen at or near the still other than the defendant and these two negroes, I do not see how it could be said that there could be a reasonably doubt in the minds of the jury as to his guilt; on the contrary it would be very unreasonable to assume that this liquor was manufactured by any other than the appellant herein.
George T. Mitchell, for appellant.
The court below proceeded upon the idea that if appellant did any usual and ordinary act necessary for the manufacture of intoxicating liquor, then he was guilty as charged, even though no liquor was afterwards manufactured, as a result of these usual and ordinary acts. In short, the court below permitted himself to become confused over the distinction between an attempt to commit a crime and the actual commission thereof. Carrying out his view of the case the court gave the following instruction for the state: "The court charges the jury for the state that if you believe from the evidence, beyond a reasonable doubt that the defendant, either alone or with others, manufactured intoxicating liquor, or performed any usual and ordinary act necessary for the manufacture thereof, at the time and place, and in the manner charged in the indictment, then you will find him guilty as charged."
It is only necessary to read this charge in connection with the facts as shown by the record to see at once the glaring error of the court in giving same.
The court seemed to have the idea that because two buckets of whisky were found some thirty or forty feet from the still some two or three days before appellant was seen at the still, that therefore it was a question for the jury to determine as to whether or not appellant had manufactured that whisky.
There is such a well defined line of demarcation between the crime of attempting to commit an offense, and the actual commission thereof that it does seem an utter waste of time to call the attention of this court to it. It is well settled by this court that if a party is charged with the manufacture of intoxicating liquor, he cannot, under that indictment, be convicted simply on proof of an attempt to manufacture intoxicating liquor. This was held in the case of Hughes v. The State, 96 So. 516. In that case Hughes was indicted and convicted of manufacturing intoxicating liquor, and the court in passing upon the facts, speaking through Judge ANDERSON, uses the following language:
The above opinion absolutely settles the instant case, and leaves no room for further argument. The "two other statutory crimes," referred to in the opinion of Judge ANDERSON were clearly having a still in his possession, and attempting to manufacture intoxicating liquor.
Argued orally by Geo. T. Mitchell for appellant, and S. C. Broom, Special Assistant Attorney General, for the state.
Appellant in his suggestion of error makes a vigorous attack on the opinion of the court handed down affirming this case. There was only a memorandum opinion prepared and handed down by the chief justice. Appellant's contention is that the evidence is wholly insufficient to sustain the conviction. That position is supported by two dissenting members of the court, Judges SYKES and HOLDEN. Under these circumstances, we feel called upon to respond to the suggestion of error in the form of a written opinion.
The first and the main witness for the state was Crawford. His testimony was supported by that of the other witnesses for the state. The bench and bar perhaps will better understand the state's case by setting out Crawford's testimony as it appears in the record:
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