Lofton v. State

• Court: Mississippi Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Lofton v. State, 111 So. 303, 146 Miss. 237 (Miss. 1927)
• Decision Date: 31 January 1927
• Docket Number: 25923
• Parties: LOFTON v. STATE. [*]

111 So. 303

146 Miss. 237

LOFTON v. STATE. ^[*]

No. 25923

Supreme Court of Mississippi

January 31, 1927

Division B

Suggestion of Error Overruled Feb. 28, 1927.

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

Cliff Lofton was convicted of unlawful manufacture of intoxicating liquors, and he appeals. Affirmed.

Affirmed.

W. A. Blair and F. S. Harmon, for appellant.

I. The testimony for the state was insufficient to sustain a conviction and the peremptory instruction requested by the appellant was erroneously refused. Hughes v. State, 96 So. 516 (1923); Stribling v. State, 86 So. 897 (1921); Powers v. State, 124 Miss. 423, 86 So. 862; Rowell v. State, 104 So. 351 (Ala., 1915); Eugene Williams v. State, 98 So. 107 (1923); Lem Williams v. State, 98 So. 341 (1923); Medlin v. State 108 So. 177.

We are not unmindful of Bailey v. State, 108 So. 497 (1926), but say with confidence that the Bailey case is readily distinguishable, the theory of the state being that Bailey was an accessory before the fact and aided and abetted in the manufacturing process through employing others to put up the still, cut a road and do other necessary work, and through the actual purchase of sugar and other ingredients which had been brought together to make the mash which the officer seized.

Likewise in Chandler v. State, 108 So. 723, where the appellant was indicted for manufacturing and convicted of the attempt to manufacture, the court pointed out that a member of the raiding party saw each one of the people at the still participating in the manufacture and working around the still.

Summing up the decisions of our own court, it is apparent therefore, that mere ownership of a still is not sufficient to sustain a conviction for manufacture; that mere presence at the scene is insufficient, and, likewise, the mere possession of liquor which has been manufactured. In the light of these cases we submit that the evidence here is utterly insufficient since at best it simply goes to show that this appellant was joint-owner of the still and had been there on the day of the raid "just watching."

To be accurate, there is no such thing as ownership in a whiskey still; and, technically speaking, though a man may have a still in his possession, he cannot own it in Mississippi, since it becomes forfeited to the state the instant it is used for an illegal purpose.

II. The court erred in granting instruction No. 1 to the state, to the effect that "If the jury believes from the evidence beyond a reasonable doubt that defendant Cliff Lofton was a partner in the unlawful manufacture of intoxicating liquor, it makes no difference under the law whether he was actually present at the still when said liquor was being manufactured or not, etc."

A partnership is for a lawful purpose and there can be no partnership, legally speaking, to commit a crime; for partnership is founded on contract and a contract to manufacture liquor would be null and void ab initio. Had the state proved a conspiracy between Whitt and this appellant, the case would be different, but this record furnishes no such proof.

The crime of possessing a still refers to a passive state; the crime of manufacturing liquor is shot through and through with positive action and before one can be convicted for manufacturing liquor, the state must prove beyond a reasonable doubt that he acted affirmatively, either by aiding and abetting those on the job or by assisting them at the still himself.

III. The testimony of the deputy sheriffs was incompetent and its admission highly prejudicial. The trial court erred in permitting the two deputy sheriffs to testify for the state without first introducing a line of evidence connecting this appellant with the manufacture of liquor at this still. To our minds this constituted a violation of the fundamental rules of evidence. To say that he went to a still and found A, B and C making liquor, and then in the next breath permit him to testify that he arrested A, B and C on the spot and later arrested D (appellant), and then leave the stand, is to throw overboard the fundamental rule that to be competent, evidence must be material and relevant and must directly connect the defendant with the crime charged.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. The testimony of the deputy sheriffs was competent and admissible. It is always necessary for the state to prove that a crime has been committed--In other words, to prove corpus delicti. It is always permissible for the state to make this proof by witnesses who do not know who committed the crime, and by witnesses who are unable to connect the defendant with the commission of the crime. This testimony established the corpus delicti and was competent and admissible for this purpose.

II. The testimony for the state was sufficient to sustain the verdict of guilty returned by the jury. When the indictment charges that a person manufactured intoxicating liquor, it is not incumbent upon the state to prove that one person did each and every act necessary to constitute the crime. In fact, there are very few cases in which one and only one person is implicated. The testimony in this case shows conclusively that the appellant was actively engaged in the manufacture of this liquor and that he was guilty as charged in the indictment. Bailey v. State, 108 So. 497; Chandler v. State, 109 So. 723.

III. Instruction No. 1 for the state is not a correct statement of the law. However, I think it was harmless to the defendant in this case. The testimony shows that the defendant and Whitt were partners in the ownership, in the operation and in the products of the still. It is true that the word "partners" is inaccurate and does not describe the relationship of parties engaged in the violation of the criminal law. However, the facts had been testified to and the jury could not have been misled by the instruction and it is, therefore, harmless error.

OPINION

ANDERSON, J.

Appellant was indicted and convicted in the circuit court of Lee county of a crime of unlawfully manufacturing intoxicating liquors, and sentenced to the penitentiary for three years. From that judgment he prosecutes this appeal.

On the 3d of March, 1926, Carr and Ballard, deputy sheriffs of Lee county, acting on information that a still was being operated on land belonging to Elihugh Estes, went to Estes' pasture, and found the still in operation. They testified that it was being operated by Sylvester Whitt, Jesse Mitchell, and Drucilla Miller. They found that whisky had been manufactured on the still, and was also being manufactured thereon at the time. Whitt, Mitchell, and Miller were arrested, and at the next term of the circuit court of Lee county they were indicted on the charge of manufacturing intoxicating liquors, and plead guilty. The testimony of the officers was that, at the time the still was found, only Whitt, Mitchell, and Miller were present and engaged in its operation; and their testimony, in connection with the other testimony in the case, showed that appellant was not present at the time, and therefore was taking no part in the operation of the still. Appellant was not arrested until some time after the arrest of Whitt, Mitchell, and Miller. Whitt, after pleading guilty to the charge of manufacturing whisky, was introduced as a witness on behalf of the state, and testified, in substance, that appellant owned the still, and that he and appellant were operating it together, and were partners in the output of the still; that, about half an hour before the officers raided the still, appellant left the still with a jug of whisky and a gun, for the purpose of hiding the whisky; that this whisky had been manufactured on the still; that under their arrangement it was appellant's duty on the day of the raid to watch while the others tended the still; that the mash found at the still belonged to appellant, who had prepared it, and, using the language of the witness, "we were sort of partnership, me and Mr. Lofton."

It is argued on behalf of appellant that the jury should have been directed by the trial court to acquit appellant, because of the absence of any evidence whatever to show that appellant was personally...