McElhenny v. State

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE, J.
• Citation: McElhenny v. State, 135 Miss. 210, 99 So. 674 (Miss. 1924)
• Decision Date: 21 April 1924
• Docket Number: 23857
• Parties: MCELHENNY v. STATE. [*]

99 So. 674

135 Miss. 210

MCELHENNY v. STATE. ^[*]

No. 23857

Supreme Court of Mississippi

April 21, 1924

Division B

(Division B.) January 1, 1920

INTOXICATING LIQUORS. Evidence held sufficient to sustain conviction for unlawful manufacture.

In this case the evidence is set out in the opinion and is sufficient to sustain a conviction of unlawfully manufacturing intoxicating liquor.

HON. G E. WILSON, Judge.

APPEAL from circuit court of Newton county, HON. G. E. WILSON Judge.

George McElhenny was convicted of unlawfully manufacturing or distilling intoxicating liquors, and he appeals. Affirmed.

Judgment affirmed.

W. I Munn, for appellant.

The evidence is insufficient to sustain a verdict of guilty. Some two or three hundred yards from the appellant's house, parts of a still were located by the officer. The witnesses all tell about the same thing in regard to the mash, the pipe, the trough, the lid and the wash pot, and also in regard to the finding of some moonshine in some weeds near the appellant's well.

Taking the testimony of the state's witnesses, it is insufficient to make out a case against the appellant, because they all say that they did not know to whom the parts of the still belonged, and they did not know to whom the moonshine belonged, and they did not know who made it.

In Anderson v. State, 95 So. 637, this court said: "Two things are necessary before the defendant can be convicted of manufacturing liquor, (1) that he manufactured a liquor that can be used as a beverage; (2) that it is one of the kind designated by the statute."

There is no testimony in this record that the appellant manufactured whiskey. None of the state witnesses attempted to say that the appellant manufactured the whiskey. The testimony when taken as a whole does not make out a case against the appellant on the charge referred to in the indictment.

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

There are two outstanding points: First, no reasonable explanation has been made by the defendant of why he fled from the presence of the officers when they came to his place for the purpose of making a search. In his own words, he stated to the sheriff and virtually admitted on the stand that he did not want to go with them and did not have arrangements made to make bond. We respectfully contend that this is a clear cut and damaging admission, amounting in its essence to a virtual confession.

In the second place, the testimony shows that as soon as the search of the officers led them to the flower bed where the manufactured whiskey was concealed, the defendant's wife left the place where she was pickling cabbage and went into the house.

It stands to reason that a man living out in the country with neighbors far apart and few, would have known of the presence of the liquor in his flower bed to say nothing of the outfit for its manufacture concealed only a few hundred yards from his house. It is a matter of common knowledge that the odor of fermenting mash or beer can be detected for at least a quarter or a half of a mile. It was positively testified to in this case that the outfit found on defendant's place was a complete one. It was positively asserted before the jury that such an outfit could manufacture intoxicating liquors. As a matter of fact the contents of the jar burned the green grass upon which it was poured when a match was applied to it.

The failure of the defendant to offer some reasonable hypothesis upon which the jury could believe that some other person was conducting such a well ordered and complete establishment negatives any statement that he might make that he knew nothing of its operation. The evidence in the case at bar taken as a whole clearly established the guilt of the defendant.

The detection and conviction of persons charged with manufacturing moonshine liquor is difficult at most. It is an offense not carried on in the open, and if this court should hold that in each case the defendant must be caught while building the fire, stirring his mash or pouring the finished product into jugs, it would be well-nigh impossible for the statute to be enforced. It is our view that circumstances as in any other case may be so coupled as to form a chain of evidence leading to an irresistible...