108 So. 723 | Miss. | 1926
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.),
It is next insisted that the evidence is insufficient to sustain the conviction. The evidence showed that each *317 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 *318 instructions given are sufficient to announce the law of the case in our opinion.
The judgment of the court will therefore be affirmed.
Affirmed.