Powe v. State

• Decision Date: 05 October 1936
• Docket Number: 32364
• Citation: 169 So. 763,176 Miss. 455
• Court: Mississippi Supreme Court
• Parties: POWE v. STATE

169 So. 763

176 Miss. 455

POWE v. STATE

No. 32364

Supreme Court of Mississippi

October 5, 1936

Division A

1. INTOXICATING LIQUORS.

Indictment charging unlawful possession of still held not demurrable because it did not show that still was a whisky still (Code 1930, secs. 1993, 1994, 2012).

2. CRIMINAL LAW.

In prosecution for unlawful possession of still, affirmative defense of duress held not established in absence of proof of Impelling danger, present, imminent, and impending at time accused participated in crime of possessing still (Code 1930 sec. 1993).

HON. W J. PACK, Judge.

APPEAL from circuit court of Forrest county HON. W. J. PACE, Judge.

Dan Powe was convicted of unlawful possession of a still, and he appeals. Affirmed.

Affirmed.

E. F. Coleman, of Purvis, for appellant.

The demurrer says that the indictment is not sufficient in that the indictment does not name the kind of still and thereby does not describe the crime with sufficient certainty. It is the contention of the defendant, appellant here, that the indictment should have described the still by saying a whiskey still and thereby apprise the defendant of the crime charged.

Rawls v. State, 70 Miss. 739; Sullivan v. State, 67 Miss. 350; State v. Bardwell, 72 Miss. 537.

We feel that the indictment in this case should have gone further than use the words of the statute, and should have stated what kind of still it was or for what purpose the defendant was going to use the still.

We contend that it was highly prejudicial to the right of the appellant to admit evidence of nine barrels of mash at the scene, as it is not shown that the appellant knew of the mash or had any connection with the mash.

Instruction No. 9 granted to the state is not the law in any case at all, and especially in this case. This instruction told the jury that the defendant must show that he was in actual danger of losing his life or was in actual danger of suffering some grave bodily harm before they could say he was acting under duress. This is not the law at all, and was calculated to mislead the jury as to the law of duress. All that a man or person must show in a plea of duress is that he is acting under threats of some bodily harm or of losing his life. The appellant may not have been in actual danger of losing his life or suffer some grave bodily harm, but he was acting under threats of losing his life, which threats he believed sufficient to cause him to go with the men on the unlawful mission.

The argument of counsel should be confined to the issues involved in the case and not to prejudicial, extraneous and inflammatory matters outside of the case.

Walton v. State, 147 Miss. 17.

Webb M. Mize, Assistant Attorney-General, for the state.

The indictment tracks section 1993 of the Code of 1930. The statute does not use the words "whiskey still" or "whiskey distillery." Therefore, we submit that the demurrer to the indictment was properly overruled.

Section 1993, Code of 1930; Ousley v. State, 154 Miss. 351, 122 So. 731; State v. Hinton, 139 Miss. 513, 104 So. 354; Sullivan v. State, 67 Miss. 346, 7 So. 275; Richberger v. State, 90 Miss. 806, 44 So. 772.

The appellant assigns as error the overruling of the motion for peremptory instruction and argues that the defendant could not be guilty because he was compelled to do what he did in connection with the still under coercion and duress and that threats had been made against him of the loss of his life. We have searched the authorities in an effort to find where duress had been successfully used as a defense to a crime, but have found no such authority and believe that there is none. If such were the law, there should be a number of cases reported on the subject. The appellant does not deny his participation in the crime and the record shows that he was not under duress at this particular time, as he stated that he would go on and help the Lees out "just this time."

Adair v. State, 148, Miss. 240, 114 So. 345.

We submit that in the case at bar Powe agreed to help the Lees in this particular run of whiskey, and, therefore, he is guilty under the statute.

Johnson v. State, 154 Miss. 512, 122 So. 529; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745; Taylor v. State, 158 Miss. 505, 130 So. 502.

The statement of counsel was objected to by the defendant and the objection was sustained and the court admonished the jury to disregard the remark. We think that under the authority of Shelton v. State, 156 Miss. 612, 126 So. 390; Day v. State, 91 Miss. 239, 44 So. 813, no error was committed in refusing to grant the mistrial.

OPINION

McGowen, J.

The appellant, Powe, was jointly indicted with Andrew J. Lee and J. P. Lee for crime in the following language, omitting the formal parts: "Did then and there wilfully, unlawfully and feloniously possess a distillery commonly called a still" A severance was granted, and the appellant was tried by a jury, convicted, and sentenced by the court to serve a term in the penitentiary, from which he appeals.

There was a demurrer to the indictment, Which was overruled by the court.

Officers of the Internal Revenue Department of the federal government testified that on the 2d day of August, 1935, about four o'clock in the morning, they went to a certain place in Forrest county to wait and watch; that about seven o'clock a. m. they saw Jay Lee drive up in a car accompanied by Andrew J. Lee and the appellant, Powe, the latter riding on the fender or side of the car. These witnesses testified as to the parts of the still that were taken from the car, and that the three of them carried the parts of the still to a place where they put it together in or on a furnace. While putting the still together, Jay Lee said, "Boys, you ought to get from seven to nine gallons to the barrel here this morning," and the appellant replied, "Yes, sir, we will try it." Thereupon Jay Lee started away, and the arrest of the parties ensued, It was shown that the appellant had been convicted of the same offense in the federal court; and further shown that at or near this place there were nine barrels of mash, or "buck" as denominated by the appellant.

The appellant, in his own behalf, virtually admitted that he and the others set up a still, and that he participated in the construction of the furnace and the putting together of the several parts of the still which he assisted in bringing from the car. In his testimony, appellant undertook to set up a defense of duress in the commission of the crime. On the morning of the arrest, and prior thereto, appellant had been ploughing for Jay Lee, but, on account of rain, he was stopped from ploughing, and Jay Lee requested him to come on and do something for him so that he could be paid what he owed him. Upon reaching the car, he saw the parts of the still--the worm, the corn, and the buckets. He told Lee that he did not want to "fool" with anything like that, and thereupon Lee said, "You get in here and go on and help, or else," and appellant then said, "If nothing will do but to go, I will go on with you this time." Appellant also testified that Lee told him that if he wanted to "live his days out he had better go," and that thereupon he stepped up on the side or fender of the car and rode to the place where the still was set up by him and others.

1. It is argued that the court erred in overruling the demurrer to the indictment, the ground of the. demurrer being that the indictment does not name the kind of still possessed by the appellant; and it is contended that the indictment should have alleged that the still or distillery was a whisky distillery or still. Section 1993, Code 1930, makes it a felony to have in possession any distillery commonly called a still; Section 1994, Code 1930, sets out several exceptions to the former section, which are unnecessary to here detail. Under these two sections, prior to 1924, it was necessary for an indictment...