Powers v. State

• Citation: 124 Miss. 425,86 So. 862
• Decision Date: 07 February 1921
• Docket Number: 21395
• Court: United States State Supreme Court of Mississippi
• Parties: POWERS v. STATE

86 So. 862

124 Miss. 425

POWERS v. STATE

No. 21395

Supreme Court of Mississippi

February 7, 1921

1. INTOXICATING LIQUORS. Knowledge that whiskey is being made held not sufficient to convict for manufacturing.

In a prosecution for feloniously manufacturing intoxicating liquors, where defendant had been indicted with another and a severance had been granted, it was error to refuse to instruct that before defendant could be found guilty he must have actively aided, assisted, encouraged, or consented to the manufacture of whiskey; mere passive knowledge that whiskey was being made not being sufficient.

2. INTOXICATING LIQUORS. Failure to interfere with one manufacturing intoxicants not an offense.

Mere failure to object or failure to interfere with an illegal manufacture of intoxicating liquor by another does not constitute a violation of the statute.

[86 South 863, No. 21521.]

HON. E D. DINKINS, Judge.

APPEAL from circuit court of Tate county, HON. E. D. DINKINS, Judge.

J. M Powers was convicted of feloniously manufacturing intoxicating liquors, and he appeals. Reversed and remanded.

Reversed and remanded.

J. F Dean, for appellant.

We contend that the evidence is wholly insufficient to sustain a conviction, that it barely raises a suspicion of appellant's guilt. There is no evidence even tending to show a conspiracy between appellant and his co-defendant or any one else to engage in the making of whiskey; there is no evidence to show that he was ever at the still or ever saw it; to take the testimony of the state's main witness at its full face value as we must upon this issue, it shows nothing more than appellant was a patron of the manufacturers, and carried away what witness evidently supposed and perhaps was justified in supposing was whiskey. No case of manufacturing whiskey was made out against him and he was entitled to his discharge upon the conclusion of the state's case.

But in this state of the record, the court granted to the state an instruction that is clearly error. This instruction tells the jury that defendant is guilty if he aided, assisted, abetted or knowingly consented to the making, etc. This is not the law. The instruction was evidently drawn from a hasty reading of the syllabus of the case of McCoy v. State, 91 Miss. 257, as annotated under section 751 of Hemingway's Code. But even this short annotation shows the instruction to be wrong. Every person present consenting to the commission of an offense, and doing any act which is an ingredient, etc.

The law uses the copulative conjunction "and," and the instruction uses the disjunctive conjunction "or" and makes the instruction say that defendant is guilty if he aided; his guilty if he assisted; he is guilty if he abetted he is guilty if he knowingly consented to the manufacturing of whiskey. To combat this erroneous instruction the defendant requested as shown by the record, instruction No. 10, which stated that before they could convict, they must believe from the evidence that he actively aided, assisted, abetted, encouraged or consented to the manufacture of the liquor; that mere passive knowledge that whiskey was being made was not sufficient to convict defendant.

The court refused this instruction, showing clearly that the court and district attorney thought that mere knowledge, passive knowledge, that whiskey was being made was sufficient to convict, and this was so impressed upon the jury, that it amounted to a peremptory instruction, since Mr. Powers testified that he knew the whiskey was being made and protested against it, yet he knew it and this old man was found guilty because he knew whiskey was being made and did nothing toward reporting it.

This refused instruction is supported by Pulpus v. State, 84 Miss. 49, this court in McCoy v. State, 81 Miss. 257, in commenting upon the Pulpus case said: "The parties in that case who had rabbit sticks in their hands, had nothing whatever to do with the killing, they did not participate in the killing in any way whatever, they were mere bystanders." Wherein does the evidence in this case show that Mr. Powers was more than a "bystander."

If Mr. Powers was guilty because he knew of the manufacture of the whiskey, the sheriff of Tate county was equally guilty for he also knew of it and every other good citizen of the county who knew of it, whether he approved of it or not, was equally guilty, under the instructions of the court. For these many gross and palpable errors we earnestly request this court to reverse this cause and to discharge this feeble, gray-headed old man.

Fred H. Lotterhos, for appellee.

It is assigned as error that the court erred in granting instruction No. 2 for the state. If instruction No. 2 was erroneous it cannot be complained of because instruction No 1, asked for and given to the defendant accepted the theory of the case set forth in...