95 So. 637 | Miss. | 1923
delivered the opinion of the court.
The appellant was' convicted of manufacturing intoxicating liquor under section 18, chapter 189, Laws of 1918 (Hemingway’s Code Supp. 1921, section 2163t).
The indictment charges him with having manufactured “fermented intoxicating liquor commonly called mash or
The extent of the fermentation and whether the mash was sufficiently liquid to be drunk, or was of such character as to indicate that it was intended or suitable for human consumption, does not appear. The appellant’s defense is that he intended to use the mash for hog feed.
There was evidence which, if competent, tended to show that the appellant intended to use the mash in the distillation of spirituous liquor.
The liquors the manufacture of which are prohibited are necessarily such as are “intended for use as a beverage or capable of being so used.” Black on Intoxicating liquors, section 2; 4 Words and Phrases, First Series, 3736. Two things must appear before a defendant can be convicted of a violation of the statute: (1) That he manufactured a liquor that can be used as a beverage; (2) that the liquor is one of the kinds specifically designated in the statute (Feyfelt v. State, 73 Miss. 415, 18 So. 925; Edwards v. City of Gulfport, 95 Miss. 148, 49 So. 620; Fuller v. Jackson, 97 Miss. 237, 52 So. 873, 30 L. R. A. [N. S.] 1078), or that it will in fact intoxicate.
Whether the mixture of corn chops and molasses found in the appellant’s possession had become sufficiently liquid to be used as a beverage, or was in such condition otherwise as to be suitable for human consumption, does not appear. Consequently one of the elements of the liquor the manufacture of which is prohibited by the statute is here lacking, and the evidence, therefore, is insufficient to support the verdict.
It is not necessary for us to decide whether the second element appears from the evidence.
Reversed and remanded.
