State v. Ernst
| Decision Date | 30 April 1929 |
| Docket Number | 1498 |
| Parties | STATE v. ERNST. |
| Court | Wyoming Supreme Court |
Appeal from District Court, Laramie County; William A. Riner, Judge.
On petition for rehearing. Rehearing denied.
For former opinion, see 275 P. 110.
Edward T. Lazear, of Cheyenne, and Arthur R. Morrison, of Denver, Colo., for appellant.
Before BLUME, C. J., KIMBALL, J., and BURGESS, District Judge.
A rehearing has been asked on the ground that the court erred in holding the evidence sufficient to sustain the conviction.
The sufficiency of the evidence is challenged because the witness Carroll, after testifying that the still was being used at the time for the manufacture of moonshine whisky, stated on cross-examination that he did not know what the liquid was issuing in drops from the end of the coil. This confession of ignorance as to the nature of the liquid nullifies, it is said, his testimony that the still was being employed to make a prohibited liquor. His testimony was a matter for the jury. They could believe it in whole or in part. There certainly was not in it any such repugnancy as to warrant us in saying that the jury should have rejected it in toto. He testified that the still was being used for the manufacture of moonshine whisky. In this he was corroborated by all the facts in the case. The jury evidently believed him. As it was unnecessary to show that the process had reached the stage of a completed product, it was likewise unnecessary to show the nature of the liquid just commencing to form in drops at the end of the coil.
It is also said it must appear that the apparatus and its contents were capable at the time of producing intoxicating liquor. If, as the witness testified, the still with its contents of corn sugar mash was being used to make whisky, its capability of producing that for which it was being used would seem to us sufficiently to appear.
The petition for rehearing will be denied.
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