Hancock v. State

• Decision Date: 16 February 1931
• Docket Number: 29153
• Citation: Hancock v. State, 132 So. 445, 159 Miss. 856 (Miss. 1931)
• Court: Mississippi Supreme Court
• Parties: HANCOCK v. STATE
• Writing for the Court: McGowen, J.

132 So. 445

159 Miss. 856

HANCOCK v. STATE

No. 29153

Supreme Court of Mississippi

February 16, 1931

Division A

INTOXICATING LIQUORS. In prosecution for manufacturing liquor, instruction on circumstances which would justify jury in finding defendant guilty held erroneous.

Instruction In substance authorized jury to convict defendant of manufacturing liquor if they believed beyond reasonable doubt that defendant was present at still and feloniously aided assisted, or abetted in manufacture of whisky by pouring sugar into barrels of mash. Under circumstances detailed in instruction, defendant would be guilty only of attempt to manufacture whisky, and not guilty of completed crime.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON E. L. BRIEN, Judge.

Howell Hancock was convicted of unlawfully manufacturing intoxicating liquor, and he appeals. Reversed and remanded.

Reversed and remanded.

Thames & Thames, of Vicksburg, for appellant.

The court erred in overruling appellant's motion for a peremptory instruction directing the jury to find appellant not guilty.

There was not one scintilla of evidence to support the conviction of appellant on this charge. There was no whiskey manufactured at the time, and while all preparation had been made by some one, manifestly not by appellant, however, to manufacture whiskey, that at best it was only an attempt to manufacture whiskey and not the manufacturing of whiskey.

Hughes v. State, 96 So. 516.

This court has held repeatedly that the mere presence of a person at a still is not a violation of law.

French v. State, 63 Miss. 386; Williams v. State, 32 Miss. 389; Kimbrough v. Ragsdale, 69 Miss. 674; Potera v. Brookhaven, 95 Miss. 774; Hooks v. Mills, 101 Miss. 91.

Facts must not be assumed in the giving of instructions.

Griffin v. Griffin, 93 Miss. 651; Reed v. Y. & M. V. R. R. Co., 94 Miss. 639; Godfrey v. Meridian R. R. Co., 101 Miss. 565; Crawford v. State, 97 So. 504.

N. Vick Robbins, of Vicksburg, for the state.

The case of Hughes v. State, 96 So. 516 is cited by counsel and is relied upon to sustain their position that a peremptory instruction should have been granted in this case. We have examined this case and find no statement of the facts upon which our court based its opinion in that case except that statement contained in the opinion of the court wherein it is said "the evidence simply showed that appellant had a still and was preparing to manufacture intoxicating liquor." When arrested he had manufactured no liquor and crime had not been committed. It does not appear what preparations had been made in this Hughes case or that any manufactured liquor was found at the still. In fact the court's opinion negatives the idea that any whiskey was found at the still.

Wherefore, we earnestly submit, the Hughes case has no application to the case at bar.

The following cases seem to us to be in point and controlling in this case: McElhenny v. State, 135 Miss. 210, 99 So. 674; Williams v. State, 149 Miss. 681, 115 So. 776; and Lofton v. State, 146 Miss. 237, 111 So. 303.

Under the authority of the McElhenny case it was a question for the jury and the peremptory instruction could not have been granted.

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

The testimony of the three witnesses for the state is in practical accord to the effect that they found a still properly assembled, charged with the essential elements for the distillation of whiskey with a fire under it, but that no whiskey had actually come from the still; that two negro men and the appellant were present at and around the still; that two of the witnesses saw the appellant empty the contents of a bag, presumably to have contained sugar, into two barrels of mash there at the still, but that the said two barrels were in no wise joined to or connected with the still or necessary to its operation in the manufacture of whiskey. All of the witnesses agree that no whiskey had come from the still at the time the two negroes and appellant discovered the presence of the officers.

It is true here that appellant may be guilty of having in his possession a still, and he may also be guilty of an attempt to manufacture intoxicating liquor, but he was indicted for neither; nor was he convicted of the attempt, as perhaps he might have been under the indictment and the proof adduced.

Goins v. State, 155 Miss. 662, 124 So. 785; Medlin v. State, 143 Miss. 856, 108 So. 177.

Unless the court holds the refusal of the court below to grant the peremptory instruction requested by the appellant to have been error, I submit that this case should be affirmed. Should the court find that the lower court erred in this regard, then the case should be reversed and remanded, the appellant held to await the action of the grand jury that they may inquire of and concerning his connection with an attempt to manufacture intoxicating liquor and/or his possession and control of the still as was done in the Hughes case, supra.

OPINION

McGowen, J.

On an indictment which charged that the appellant, Howell Hancock, did then and there willfully, unlawfully, and feloniously manufacture intoxicating liquor, to-wit, whisky, the appellant was convicted and sentenced by the court to serve a term of two years in the penitentiary, and he appeals here.

The material facts of the case necessary to state here are that officers of the law somewhere north of the city of Vicksburg seeing smoke in the woods, proceeded...