Stribling v. State

• Decision Date: 07 February 1921
• Docket Number: 21396
• Citation: 124 Miss. 141,86 So. 897
• Court: Mississippi Supreme Court
• Parties: STRIBLING v. STATE

86 So. 897

124 Miss. 141

STRIBLING v. STATE

No. 21396

Supreme Court of Mississippi

February 7, 1921

October 1920

1. INTOXICATING LIQUORS. Conviction for manufacturing intoxicants not warranted if defendant merely consented thereto.

In a prosecution for felonlously manufacturing intoxicating liquors, an instruction which authorizes a conviction "if the jury believe from the evidence beyond a reasonable doubt that the defendant aided, assisted, abetted or knowingly consented to the making and distilling of intoxicating liquors" is erroneous.

2. CRIMINAL LAW. Declaration by codefendant denied by defendant held inadmissible.

Evidence of a statement made by a codefendant in the presence of the accused, which statement was at the time denied by the defendant, is inadmissible.

HON. E D. DINKINS, Judge.

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

Jesse Stribling was convicted of feloniously manufacturing and distilling intoxicating liquors, and he appeals. Reversed and remanded.

Cause reversed and remanded.

D. C Lauderdale for appellant.

The first error of which we complain was the admission by the court over the objection of the defendant of the testimony of Dr. Williams, that Mr. Powers when arrested stated that Stribling could tell him or show him where the still was when defendant denied that he could do so. This testimony was clearly incompetent. It tended to show that defendant--Stribling--had knowledge of the whereabouts of the still and when this accusation was denied by defendant, its admission was error. In the case of Garner v. State, it was held that an accusation made against defendant and by him denied could not be admitted over objection of defendant and its admission was serious error. Garner v. State, 120 Miss. 744, 83 So. 83, Brown v State, 78 Miss. 637, 29 So. 519. The denial of the statement made by Powers to Dr. Williams rendered it inadmissible. Cain v. State, 77 So. 453.

Not satisfied with the many errors already complained of the court in giving instruction No. 2 for the state committed what we consider the fatal error in the entire record. The jury were by this instruction told that the jury would convict if they believed from the evidence beyond a reasonable doubt that defendant "aided, assisted, abetted or knowingly consented."

When you consider this instruction with the testimony of Dr. Williams, who you will bear in mind was the sheriff of the county, and that of H. T. Dixon, the fatality of this error is more glaring. Here is the sheriff of the county testifying that defendant knew where the still was, and it was but a natural inference for the jury to draw that since he knew of the existence of the still, and had not reported this to the officers, that he had consented. We do not understand the rule to be that a man can be convicted, where he is charged with the commission of a crime, on mere proof that he "knowingly consented. Suppose A goes to B and tells him he has some whiskey that he wants to sell and thinks he can sell to C and he, B, says, "Well, if C wants it, go sell it to him," and he goes and sells it to him. Surely under no construction could B be convicted of selling whiskey, yet by this instruction they are told to convict if defendant "knowingly consented" to the manufacture of liquor.

We submit that on the record in this case taking it in its entirety that defendant has not had that fair and impartial trial which ...