State v. Burton

• Citation: 145 Miss. 821,111 So. 300
• Decision Date: 07 February 1927
• Docket Number: 26231
• Court: United States State Supreme Court of Mississippi
• Parties: STATE v. BURTON. [*]

111 So. 300

145 Miss. 821

STATE v. BURTON. ^[*]

No. 26231

Supreme Court of Mississippi

February 7, 1927

Division A

. (Division A.)

1. INDICTMENT AND INFORMATION. Indictment for attempt must allege act is adapted to effectuate purpose of offense except where act alleged is manifestly adapted.

Indictment for attempt to commit an offense must allege some overt act intrinsically adapted to effectuate purpose; but, where act alleged is manifestly adapted to effectuate purpose, it is unnecessary to charge that it was so adapted.

2. INTOXICATING LIQUORS. Indictment for attempting to manufacture liquor need not allege that assembling fuel at distillery to burn in manufacturing liquor is adapted therefor.

Indictment for attempting to manufacture intoxicating liquor, alleging assembling of wood and fuel at distillery for purpose of burning it in manufacture of liquor, need not allege that such act is adapted for purpose, because of fact that it was manifestly adapted therefor.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR., Judge.

Prosecution by the state against Zeno Burton for attempting to manufacture intoxicating liquors. Judgment sustaining the demurrer to the indictment, and the state appeals. Reversed and remanded.

Reversed and remanded.

Brewer & Brewer, for appellee.

The indictment in this case fails to allege that the acts complained of therein were, and are, adapted to effectuate a commission of the offense of manufacturing intoxicating liquors. This allegation is absolutely necessary. State v. Wilson, 30 Conn. 500; Stapleton v. State, 95 So. 86; Anthony v. State, 29 Ala. 27; U. S. v. Ford, 34 F. 26; 2 Wharton's Criminal Law, sections 2703-05.

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

For cases passing upon the validity of indictments under section 777, Hemingway's Code, see State v. Wade, 102 Miss. 711; Cunningham v. State, 49 Miss. 685; Stapleton v. State, 130 Miss. 737.

The indictment in the case at bar alleges that the wood and fuel were gathered and carried to the distillery. The strict meaning of a distillery is a place or building where alcoholic liquors are distilled or manufactured. Abbott's Law Dictionary; Words and Phrases; Black's Law Dictionary; Atlanta Dock Co. v. Libby, 46 N.Y. 499.

Under the law of Mississippi the possession of a distillery is a crime. In an indictment under said statute charging said crime, it is sufficient to allege that the defendant had a distillery in his possession. It is unnecessary to allege that intoxicating liquor could be manufactured therein. It is certainly unnecessary to allege in an indictment that wood and fuel are necessary and adapted to use in manufacture of intoxicating liquors.

OPINION

COOK, J.

In the circuit court of Quitman county, the grand jury returned an indictment against the appellee, Zeno Burton, charging him with attempting to manufacture in-intoxicating liquors, the indictment charging that he "did, then and there willfully, unlawfully and feloniously and designedly endeavor, design and attempt to commit a certain offense prohibited by law, to-wit, to willfully, unlawfully and feloniously make, manufacture and distill spirituous, vinous, malted, fermented, alcoholic and intoxicating liquor; and he, the said Zeno Burton, in furtherance of his said willful and felonious intent and purpose aforesaid and in furtherance of his said felonious attempt and design, aforesaid, did, then and there, willfully, unlawfully and...