Lowery v. State

• Decision Date: 20 May 1918
• Docket Number: 376
• Citation: 203 S.W. 838,135 Ark. 159
• Parties: LOWERY v. STATE
• Court: Arkansas Supreme Court

203 S.W. 838

135 Ark. 159

LOWERY v. STATE

No. 376

Supreme Court of Arkansas

May 20, 1918

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Judgment affirmed.

Richard M. Ryan and Arthur Cobb, for appellant.

1. There is a total failure of evidence to support the verdict. There is no evidence that appellant was engaged in the manufacture of liquor.

2. No violation of law since January 1, 1916, was proven.

3. Austin Brown's testimony was improperly admitted. The time was too remote and appellant had been acquitted of the crime of selling whiskey.

4. The State's case rested wholly upon circumstantial evidence and it was error to refuse appellant's requests upon the weight to be given such evidence. 76 Ark. 227; 77 Id. 201, 247, 261; 71 Id. 475.

5. The evidence shows that the liquid found could not be used as a bevarage. It was simply hog feed. The liquor was not alcoholic nor intoxicating.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant for appellee.

1. The evidence was sufficient. All the evidence and circumstances warrant a conviction.

2. The court did not err in failing to instruct the jury as to the necessity of proving the making of the liquor since January 1, 1916. This was not assigned as a ground in the motion for new trial. No request was made for such an instruction. 86 Ark. 360, 456; 71 Id. 475; 87 Id. 528; 102 Id. 588.

3. Austin Brown's testimony was competent. 59 Ark. 431; 93 Id. 260; 32 Me. 429; Wharton, Cr. Ev. (8 ed.), § 484.

4. Instruction No. 2, requested by appellant, was properly refused. It does not correctly state the law. But it was covered by other instructions given.

5. No. 8 was properly refused. The law was properly declared in No. 3, given by the court on its own motion. The making of alcoholic liquor is prohibited if the liquor so made is such as may be used as a beverage.

OPINION

HART, J.

Ed Lowery prosecutes this appeal to reverse a judgment of conviction against him for the crime of manufacturing spirituous or fermented liquors. The principal contention made by counsel for appellant is that the evidence is not legally sufficient to support the verdict.

Ed Lowery lives out in the country from Hot Springs, in Garland County, Arkansas, and in the fall of 1917 was suspected of making whiskey. In November of that year a search was made of his premises by the officers, and five barrels of mash were found in a little house back of his dwelling house. The mash was composed of sprouted corn, meal and sugar or molasses with water. The barrels were bubbling and popping, a process which the mash went through with while souring. A watch was kept over appellant's premises for several hours each night for about a week. He was not discovered making the whiskey, but one of the officers, who saw the contents of the five barrels, stated that he was familiar with the process of manufacturing whiskey and that the barrels contained what is called beer or singlings; that the meal, water and other ingredients in the barrel had arrived at that degree of fermentation where it was ready to be run off for use; that a small furnace was found near by which was covered with freshly cut pine tops; that a worm such as is used in primitive stills was also found hidden in a pile of logs near by and fresh pine tops were piled upon it; that they also found a container concealed in a pile of logs; that it was customary to run the mash or beer twice through a primitive still of this kind before it was ready for use as finished product; that the mash was of a sweetish taste when they first found it but it became sourer as the process of fermentation went on; that the mash or beer was much thinner than mash which is usually ground up for hogs.

Appellant denied having either made or sold any whiskey. He testified that he kept a number of hogs and that the mash had been prepared for their use. He said that it consisted of bran, chops and water; that he had the furnace out there for the purpose of cooking the mash for the hogs; that he took the container out of the furnace after he was through cooking the mash and put some pine tops over it to keep the hogs from getting into the fire; that he did not know anything about the worm which was found near there; that he had no idea how the worm came to be covered with pine tops as was the case with the furnace. Other witnesses corroborated the testimony of appellant.

The Legislature of 1915 made it unlawful for any person to manufacture or to be interested in the manufacture of spirituous or fermented liquors after January 1, 1916. Acts of 1915, page 98.

The testimony of the State, if believed by the jury, was sufficient to warrant a verdict of guilty. According to the testimony of the State a furnace, a container and a worm which might be used in the distillation of liquors out of corn was found on appellant's premises near his dwelling house. It also appeared that five barrels containing corn meal, molasses or sugar and water undergoing the process of fermentation were found on appellant's premises in a little house near to his dwelling house. One of the witnesses, who was familiar with the process of distilling fermented...