Chandler v. State , 143 Miss. 312 ( 1926 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 1048, n. 66; 17CJ, p. 206, n. 47 New; p. 269, n. 2; Indictments and Informations, 31CJ, p. 802, n. 70 New; Intoxicating Liquors, 33CJ, p. 758, n. 80. Appellant was indicted for manufacturing intoxicating liquors and convicted and sentenced for an attempt to manufacture intoxicating liquors. The indictment was at the April, 1924, term of the circuit court of Leake county, Miss. It appears from the evidence that J.W. Phillips, the deputy sheriff, with two constables of the county up near where the still was located, discovered certain barrels of mash a few days before making the raid and, judging as to when the run would probably be made from the state of the mash, appointed a day to return and watch so as to catch the person engaged in the business. On the day fixed they went to the place where the mash was and watched for several hours and decided that no one was coming and poured the mash out and started to return and noticed smoke coming from a pine thicket over the hill, and they went to the top of the hill, and there they could see a still being operated, at which the appellant and two other parties were engaged in operations around the still. One of the officers desiring a better view raised up to get a better view, and some of the parties at the still looked in that direction and saw the officer coming and started away from the still down the valley, and were pursued by the officers and were overtaken and arrested. Among the parties arrested was the appellant. They all returned to where the still was, and there the appellant had a gun which he admitted belonged to him, and some one had left a coat. The still was filled with mash, and a fire was under it; but the mash had not reached that stage where the liquor was running, although some liquor was found around the still.

It is first insisted that the indictment found at the April, 1924, term of the circuit court is void, although no question was raised in this record as to the regularity and legality of drawing the grand jury at that term. The appellant seems to rely upon the fact that in the case of Ellis v. State (Miss.),107 So. 757, the grand jury was held to have been illegally drawn and that that indictment was found at the same term as this. The indictment appears to be regular upon its face, and no motion to quash was made in this case. Consequently we cannot notice that point here. The court below was not called upon in this case to pass upon the validity of the indictment, and we cannot in this case take cognizance of the facts set up in the Ellis case for the purpose of determining that point. The only way objections can be made to an indictment valid upon its face is by a motion to quash.

It is next insisted that the evidence is insufficient to sustain the conviction. The evidence showed that each one of the persons present at the still were doing something around the still in the way of work contributing to the operation of the still, although from where they were located they could not see what particular act this appellant did and what particular act the other parties did, but they did see positively that each one of the parties at the still was working around it, and this evidence is sufficient to sustain the conviction.

It is next urged that the court erred in refusing the following instruction requested by the appellant:

"The court instructs the jury for the defendant that the crime charged must be fully proved beyond every reasonable doubt before the defendant can be found guilty, and before you can convict him you must believe from the evidence in this case that: First, that intoxicating liquor was actually made and distilled at the time and place testified about. Second, that the defendant did something or committed some overt act towards the manufacture and distilling of said liquors, and the burden of proving both propositions is on the state, and the state must prove same beyond a reasonable doubt before you can convict, and unless you do believe beyond every reasonable doubt that intoxicating liquors were made and manufactured by this defendant then you should return a verdict of not guilty as charged."

By section 1257, Hemingway's Code (section 1499, Code of 1906), it is provided that — "On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose."

The instruction above set out ignores this statute and was for that reason properly refused. Furthermore the instructions given are sufficient to announce the law of the case in our opinion.

The judgment of the court will therefore be affirmed.

Affirmed.