Goins v. State

• Citation: 155 Miss. 662,124 So. 785
• Decision Date: 09 December 1929
• Docket Number: 28313
• Court: Mississippi Supreme Court
• Parties: GOINS v. STATE

124 So. 785

155 Miss. 662

GOINS v. STATE

No. 28313

Supreme Court of Mississippi

December 9, 1929

Division B

1. INDICTMENT AND INFORMATION. Offenses of manufacture and distillation of liquor and possession of still and integral parts thereof could be charged in separate counts in one indictment.

Offenses of manufacture and distillation of liquor and possession of still and integral parts thereof could be charged in separate counts in one indictment, particularly in absence of timely objection, and in view of fact that punishment and maximum thereof for each offense was exactly the same.

2. INDICTMENT AND INFORMATION. General verdict of guilty will be referred to and sustained by one good count of indictment, in absence of request for election.

Where defendant in prosecution under indictment charging him with manufacture and distillation of intoxicating liquor and with possession of still and integral parts thereof failed to request election, general verdict of guilty will be referred to and sustained by the one good count sustained by proof regardless of fact that evidence was insufficient to sustain conviction on other count.

3. CRIMINAL LAW. Refusing continuance to defendant indicted only three days before trial held not abuse of discretion, where arrested some time previously.

Refusal of continuance on the sole ground that defendant was indicted only three days before trial and that his counsel had been busy in other cases and unable to prepare defense held not abuse of discretion, in view of showing as to arrest for offense some time previously.

4. CRIMINAL LAW. Technical error in permitting state to call defendant to stand and interrogate him in reference to motion for continuance held harmless.

Permitting state over defendant's objection to call defendant to witness stand and to interrogate him in reference to motion for continuance, without questioning him as to merits of charge and before jury had been impaneled, though technical error, held without prejudice.

HON. J D. FATHEREE, Judge.

APPEAL from circuit of Greene county, HON. J. D. FATHEREE, Judge.

S. M Goins was convicted upon an indictment charging him with manufacture and distillation of liquor and with the possession of a still and the integral parts thereof, and he appeals. Affirmed.

Affirmed.

E. W. Breland, of Leakesville, Alexander & Alexander, and J. C. Satterfield, of Jackson, for appellant.

The district attorney cannot force the defendant, over proper objections, to testify as a witness against himself, on his motion for continuance of his case.

Hill v. State, 152 Miss. 708, 120 So. 817.

W. A. Shipman, Assistant Attorney-General, for the state.

A general verdict of guilty is sufficient where the indictment charges separate offenses in separate counts. The verdict in such case operates as a conviction on all counts, but the defendant, if he had requested it, would have been entitled to have the jury make separate findings, or at least to have had them in some way pass on each count by itself. Where appellant made no such request he cannot complain.

Scott v. State, 31 Miss. 473; Strawhern v. State, 37 Miss. 422; Teat v. State, 53 Miss. 439; Jones v. State, 67 Miss. 111; Gates v. State, 71 Miss. 874; Hill v. State, 72 Miss. 527; Burges v. State, 81 Miss. 482; Bish., New Cr. Prac., sec. 453.

The court may grant or deny a continuance in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine.

Sec. 784, Code 1906; Sec. 581, Hemingway's Code 1927; Grogan v. State, 63 Miss. 147; Giles v. State, 150 Miss. 756, 116 So. 887.

Argued orally by J. C. Satterfield, for appellant, and by W. A. Shipman, Assistant Attorney-General, for appellee.

OPINION

Griffith, J.

Appellant was tried upon an indictment containing two counts, the first charging him with the manufacture and distillation of intoxicating alcoholic liquor, and the second charging him with the possession of a still and the integral parts thereof. The state's evidence was furnished by the sheriff and a deputy, who each testified that on a Sunday morning in the preceding January they secreted themselves in the brush near the place and plainly saw appellant assemble the still and start it into operation. However, before any whisky had actually come from the outfit, the officers closed in upon appellant, arrested him, and destroyed his still. These were the only witnesses who testified, and the evidence established without contradiction that appellant then and there was in possession of the still as charged. The evidence did not show, however, that the process of manufacture had been actually completed as to any liquor, and under Hughes v. State (Miss.), 96 So. 516, the appellant could not be convicted of the principal offense charged in the first count.

The court nevertheless charged the jury in effect that if they believed the evidence they could convict on either or both counts, and the verdict returned was guilty as charged, without specifying on which count the verdict was rendered. The court sentenced appellant to a term of two years in the penitentiary. Thus arises the assignment of error that because it cannot be told for a certainty on which count the jury convicted or whether on both, the verdict should be declared invalid and the judgment reversed.

It will be at once observed that the two offenses charged relate to the same transaction. It is necessary to the manufacture of distilled alcoholic liquor that there shall be a still. The evidence showed beyond cavil that the appellant was then and there in possession of the still, and that it was then and there with this still that he was engaged in the process of the manufacture. It was allowable in such a case--certainly so in the absence of...