Kidd v. State

• Citation: 102 So. 68,137 Miss. 419
• Decision Date: 08 December 1924
• Docket Number: 24555
• Court: United States State Supreme Court of Mississippi
• Parties: KIDD v. STATE. [*]

102 So. 68

137 Miss. 419

KIDD v. STATE. ^[*]

No. 24555

Supreme Court of Mississippi

December 8, 1924

Division B

Suggestion of Error overruled Jan. 3, 1925.

APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER Judge.

John Kidd was convicted of the unlawful and felonious manufacture and distillation of intoxicating liquor, and he appeals. Affirmed

Judgment affirmed.

R. F. Cochran, for appellant.

There is a grave doubt in our minds as to whether the appellant is guilty under the evidence in this case. It is true that the appellant was at the still, and it is, also, true that John Wilson was there and received a death wound, as well as Jim Maxie and Ernest Turnage, who have already been convicted and sentenced to the penitentiary for this crime, but nowhere does the evidence in this case, disclose the fact that appellant did anything toward aiding or assisting in the making of whiskey at this still. His presence there was not a crime under the evidence in this case and the law announced in Crawford v. State, 97 So. 534; Cook v. State, 94 So. 161.

The instruction granted the state, in our opinion, should have been refused, for the reason that it left the jury to decide whether appellant was there at the still for the purpose of aiding or assisting in the making of whiskey without any evidence on which to base such a conclusion. There is no evidence that appellant intended to help make whiskey or that he made known to anyone any such intention; then, why grant such an instruction on a mere conclusion? Crawford v. State, supra.

Harry M. Bryan, Assistant Attorney-General, for the state.

The record shows that appellant testified that he was over fourteen years old at the time of his arrest. Possibly the argument of lack of age might bear fruit with a jury and influence the trial court in fixing sentence, but we doubt if it should be persuasive on appeal. Counsel for appellant cites the Crawford case, 97 So. 534, in which this court has held that in order for one to be convicted as an aider or abettor in the manufacture of whiskey, he must do more than merely be present at the commission of the crime, but we respectfully submit that the overt acts described by the officer, Buchanan, who was an eye-witness, coupled with the establishment of the corpus delicti and confession of appellant fully and completely made out the state's case. The jury, taking as true the case made out, and rejecting evidence offered by the defendant, the verdict of guilty followed.

Counsel complains of the instruction granted for the state and says that there was no evidence adduced upon which it could be properly predicated. For the reason above shown the giving of this instruction was no error. We should like for the court to remember in reading the record that no objection was made as to the admissions of the confessions or statements of appellant. Even in the absence thereof, the court by proper interrogation found that they were free and voluntary, and therefore, competent. We are somewhat in doubt as to just what position we should take in regard to the question raised by appellant as to his sentence. Appellant complains of his being sentenced to serve a term of six months in the county jail and since that section 18 of chapter 189 of the Laws of 1918, under which he was tried, prescribed that for such offense, the defendant shall be sentenced by the court to a term of not exceeding three years in the state penitentiary. We cannot take issue with appellant on what the statute prescribes as to punishment but we do fail to see just how there was prejudicial error resulting from the court's sentencing him to the county jail instead of the penitentiary. Keel v. State, 97 So. 521, 8 R. C. L. 237; Pressly v. State, 114 Tenn. 534, 86 S.W. 376, 108 Am. St. Rep. 921; 69 L. R. A. 291; and State v. Feilen, 70 Wash. 65, 126 P. 75, Ann. Cas. 1914B, 512; 41 L. R. A. (N. S.) 418.

OPINION

ETHRIDGE, J.

The appellant was indicted at the August term, 1922, of the circuit court of Lauderdale county, for the unlawful and felonious manufacture and distillation of intoxicating liquor. The offense was said to have been committed on April 15, 1922, when the prohibition enforcement officers made a raid upon a still being operated in Lauderdale county, Miss. The officers testified that they came up to the place where the still was in operation, having two boilers, and that they got within twenty to twenty-five...