Garner v. State

• Decision Date: 25 June 1923
• Docket Number: 23500
• Citation: 132 Miss. 815,96 So. 743
• Court: Mississippi Supreme Court
• Parties: GARNER et al. v. STATE

96 So. 743

132 Miss. 815

GARNER et al. v. STATE

No. 23500

Supreme Court of Mississippi

June 25, 1923

Division A

(Division A.) January 1, 1920

CRIMINAL LAW. Corpus delicti cannot be proved alone by confession of accused; not necessary that corpus delicti be proved exclusively by other evidence than confession of accused much slighter evidence required to establish corpus delicti where accused confesses; where accused confesses, any corroborative evidence satisfying mind that accused confessed to real and not imaginary crime held sufficient.

The corpus delicti cannot be proven alone by the confession of the accused, but it is not necessary that it be proven exclusively by other evidence than such confession. Where there has been a confession by the accused, much slighter evidence is required to establish the corpus delicti than would be necessary where the state must make out the entire case unaided by such confession. In such a case any corroborative evidence will be held sufficient which satisfies the mind that it is a real and not an imaginary crime which the accused has confessed.

HON. C P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Ward Garner and others were convicted of unlawfully manufacturing intoxicating liquor, and they appeal. Affirmed.

Affirmed.

Jacobson & Brooks, for appellants.

This case should be reversed and dismissed. An examination of the record will convince the court that the evidence as a whole is not supported, and is not sufficient to warrant a conviction. Only one witness testified on behalf of the state, and as near as he could get to making out a case was that one evening while walking out in the woods he ran across two men, the appellants here. He testified that these two men were making whisky. On cross-examination, it will be seen that this was only a deduction, and is not supported by the facts. There is no testimony in the record that the fluid, if there were such, was even seen, smelt, or tasted by the state's witness; there is no testimony in the record that it was intoxicating. There is no testimony in the record that goes to show that the state's witness knew what he was talking about when he said these men were making whisky. The facts of this record show that witness Moreland went down in the woods on property not proven or contended by the state to be the property of either appellant, and that he ran up on these two men. While he says on examination that they were making whisky, when asked to go ahead and tell what they were doing, the best that he could say was they had none of the stuff on hand, no run had been made, and that they told him when a run was made they would give him some, and that Garner was keeping up the fire, and doing other things, he did not know what, but as to Collins he did not say that he was doing anything.

In Anderson v. State, 95 So. 637, it was held that: "The liquors, the manufacture of which is prohibited, are necessarily such as are 'intended for use as a beverage or capable of being so used.' Black on Intoxicating Liquors, section 2; 4 Words and Phrases, First Series, 3736. Two things must appear before a defendant can be convicted of a violation of the statute: (1) That the manufacture of a liquor that can be used as a beverage; (2) that the liquor is one of the kinds specifically designated in the statute (Reyfelt v. State, 73 Miss. 514, 18 So. 925; Edwards v. City of Gulfport, 95 Miss. 148, 49 So. 620; Fuller v. Jackson, 97 Miss. 237, 62 So. 873, 30 L. R. A. (N. S.) 1087), or that it will in fact intoxicate." There was no proof of the corpus delicti, and for this reason the indirect testimony of admissions was incompetent, and without them the case has nothing to stand upon. No whisky was seen by witness, and no odor of whisky was detected by witness, and nothing that even looked like a fluid was seen. We contend that this statement is borne out by the record, and it justified the statement that the corpus delicti is and was not proven. If the corpus delicti is not proven, then it follows that a confession or admission is not admissible, and certainly not sufficient to support a conviction. See Walker v. State, 127 Miss. 246.

S. C Broom, Assistant Attorney-General, for the State.

The theory of the appellant is that the state failed to prove the corpus delicti. They rely upon the case of Andergon v. State, 95 So. 637. However, note this distinction. In this case there is presented to the jury a question of fact, a question of the credibility of the witnesses. It was for them to say that the witness for the state was wholly unworthy of belief; that he wilfully and corruptly swore falsely to a material fact against his neighbors. Since the appellants took the stand and denied absolutely that they were there on the occasion testified to by the witness for the state, and they testified that the state's witness had manufactured and told a lie, why should they be concerned about the technical requirements of the proof of the corpus delicti. Their defense is that they were not present; their defense is that it was some other parties that the witness talked to, or that the witness, as a matter of fact, did not talk to anyone, or see anyone engaged in the manufacture of liquor. It is not as it might have been had appellants been forced to admit the possession of a still. Then, it might have been material to show absolutely that they were using it to manufacture whisky, or that whisky had been manufactured with it, but in the present case we have only to believe the witness for the state that he did actually see them there at the still, and that they were operating the still, and when this is done, then all else must be conceded because the witness said they were manufacturing whisky, and if the appellants were not there they were not in a position to say that no whisky was being manufactured. This court should bear in mind that questions of fact are for the jury to determine; that they had the opportunity of witnessing the demeanor of the witness on the stand, and judged from their manner of testifying, and from all of this they are best qualified to solve the question of fact.

Jacobson & Brooks, for appellants in rejoinder.

The attorney-general contents himself with arguing for an affirmance on the ground that the state's witness must have been unfriendly to the prosecution, and evidently the jury thought the men guilty, because they had seen and observed his manner and their manner...