delivered the opinion of the court.
The appellant, ¡Elzie Dill, was convicted in the circuit court of Monroe county on a charge of attempting to manufacture intoxicating liquor, and was sentenced to the penitentiary for two years, and from this conviction аnd sentence he prosecuted this appeal.
The indictment on which thе conviction of appellant is based was drawn under section 1049, Code 1906 (section 813, Hemingway’s 1927 Code), which provides that every person who shall design and endeavor to commit an offense, and shall do any overt act toward thе commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof shall be punished as provided by the statute, and the in *170 dictment charges that the appellant “did feloniously attempt to manufacture intoxicating liquor by then and there feloniously and knowingly preparing a compound called ‘mash,’ which said compound is essential to the manufacture of intoxicating liquor, and by feloniously assembling a^till in which to distill said mash into intоxicating liquor, which said still is essential in the manufacture of intoxicating liquor. ’ ’
The aрpellant was not represented by counsel in the court below, and he оffered no testimony. The testimony for the state shows that certain officers located a complete still and several barrels of mash in a hollow at the foot of a large hill; that there was no one at the still at that time; and that it was not then quite ready to operate. On a later date they returned to the still and secreted themselves. Shortly thereafter a car came along a roadway which circled the top of the hill, and stopped abоut' two hundred yards from the still. The appellant stepped out of this car and canie down a trail which led from the road to the still, and when he had reachеd a point about fifteen or twenty feet from the still, the officers arrested him. The officers attempted to again secrete themselves to await thе arrival of another man who was left in the car. This party drove the car a little further down the road, and there got out of the car, but immediately got baсk in and drove away, having, presumably, discovered the presence of the officers at the still. The appellant was then asked how long it would have bеen before he would have had a fire under the still, and he replied: “I would havе had it there in fifteen minutes.” On being asked if he ever made any whisky, he stated1: “Yes; I have made some whisky; and I ain going to make some more as soon as I get out of this.”
In a prosecution for an attempt to commit an offense, under the above-mentioned statute, it is necessary to charge and prove somе overt act done toward the commission of the offense; and, in the indictmеnt in the case at bar, the overt acts charged ape that the aрpellant fe
*171
loniously and knowingly prepared “a compound called mash,” and “assembled a still in which to distill said mash into intoxicating liquor. ’ ’ An overt act is one which manifests the intention to commit the crime; and, it is true that “whenever the design оf a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt.”
Stokes
v.
State,
The judgment of the court below will therefore be reversed, and the cause remanded.
Reversed and remanded.