108 So. 497 | Miss. | 1926
The proof by many witnesses examined in the court below disclosed that the defendant, C.W. Bailey, was never present at the still when liquors were being manufactured, but there is ample evidence to show that he aided and abetted in the manufacture of liquor by having a still (described as a two hundred-gallon still) hauled to the place where it was found by the officers. The still was fully set up, and, as described, had a steam boiler attached to a one hundred eighty or two hundred gallon kettle, and all the other accessories necessary to manufacture whisky; the pump from which water flowed was driven in the ground six or eight feet from the still; a tent was near by, within a few feet; there were eight or more sacks of sugar and eight or ten sacks of rye, more than twenty barrels of mash, some two or three barrels of beer, some fermenting and some ready to run, about one hundred empty charred kegs. This still was in a dense woods, on an air line about two miles from the home of Mr. Bailey; there being a path leading in practically a direct line to the still, and around the road, according to the officers, it was eight miles. There had been a freshly cut road to the still.
One witness testified to being present when the still was in operation and drinking some of the whisky. Several witnesses testified that defendant claimed to own a still, also that they had seen his still over in the woods before this officer's raid; defendant hired parties to cut a road through the dense forest to the place where *219 the still was located; that he hired them also to drive the pump that was found there, and paid for the labor employed in cutting the road and driving the pump in cash and groceries; that he hired one of the witnesses to haul the rye and sugar to the still; that he hired another witness to haul barrels from the still and put them in Blue Lake; that another witness was hired to haul the charred kegs for Bailey. The officer testified that the still had been used; charcoal and ashes were under the boiler, and evidence showed that the still was used about a week before this raid when the defendant was arrested on this charge. At the time of the raid, the still was in the same place where it was kept since Bailey had it placed there. He procured one of the witnesses to take care of thirty gallons of whisky for him for a few days; asked another witness to store whisky for him. It was shown that Bailey said, speaking of this still: "It took every cent I had to put the still back in operation."
It is not controverted that, from the time the raid was made and the still moved there, it had been in operation on several different occasions. It is also shown that the officers unlawfully seized some whisky found near his house, and afterwards he said to a witness: "Sam, I have some more whisky behind the house they didn't get."
The defendant asked for a peremptory instruction on the theory that, the state having failed to prove that Bailey was actually present at a time when whisky was being manufactured, he was entitled to be discharged. And the instructions asked for by the defendant indicated that it was his theory that he had to be actually present and that he would not be guilty even though he may have aided and abetted in the manufacture of whisky.
It was the state's theory that section 1026, Code of 1906 (section 751, Hemingway's Code), applied to this case. This section reads as follows: *220
"Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not."
Counsel for appellant seem to argue, or suggest to the court, that, because this felony charged here is a statutory crime, therefore the above statute does not apply. We cannot subscribe to that proposition in the light of the numerous decisions of this court and the plain language of the statute using the words "any felony," and in a misdemeanor our court has held that the party aiding and abetting in the commission thereof is indictable as a principal. Kittrell v. State,
So we are of the opinion that the court did not err in refusing the defendant a peremptory instruction, nor did it err in refusing instructions which ignored section 751, supra. All the instructions given for the state correctly state the law. Instruction No. 1 is subject to criticism, but, taken in connection with the other instructions, there is no reversible error on account of the instructions given or refused.
Counsel complain of the evidence offered of the discovery of whisky by the officers near the home of Bailey obtained by unlawful search, because it is said the affidavit and search warrant were void. If there was any error in this behalf, counsel made no specific objection or a motion to exclude the testimony on that ground, but obtained the following instruction:
"The court instructs the jury that all testimony in this case, in reference to the whisky discovered upon the premises, by the officers, of the said Bailey, is eliminated therefrom, and youshall not consider same in any respect in reaching a verdict." (Italics ours.) *221
Upon this point the court seems to have acted in accordance with the desire and request of the defendant.
We think it is clearly shown that whisky was manufactured by the operation of this still belonging to Bailey, and that the defendant, aiding and abetting in its manufacture, and declaring that it had taken all his money to put this still "back in operation," amply warrants a conviction, and we find no reason for disturbing the verdict of the jury or the judgment of the lower court.
Affirmed.
