151 Ark. 423 | Ark. | 1922
(after stating the facts). It is first earnestly insisted by counsel for the defendant that the testimony is not legally sufficient to support the verdict. The defendant was indicted for the offense of setting up a. distillery for the purpose of manufacturing distilled spirits for beverage purposes, and the indictment was found under § 3 of Act 324 of the General Acts of Arkansas 1921, p. 372. Sec. 3 reads as follows:
“No distillery shall be set up in this State for the purpose of manufacturing distilled spirits for beverage purposes, and no distillery shall be used in the manufacture of such spirits. Any device or any process which separates alcoholic spirits from any fermented substances shall be regarded as a distillery.”
According to the testimony for the State, the sheriff of Grant County and his deputies found the defendant stooping over in the woods in Grant County as if he was filing something. When he saw them, he ran away. When they got there, they found all the parts of a still and some mash which was ready to be distilled into spirituous liquors. All that was necessary to do to make spirituous liquors was to connect the pipes of the still, put the mash in, and start a fire.
It is the contention of counsel for the defendant that this did hot constitute setting up a still within the meaning of the statute. We cannot agree with counsel in this contention. The words “set up” constitute a phrase of very wide latitude of meaning. The phrase as used in the statute does not necessarily and exclusively apply to a complete construction of the still so that it is ready for'use. We think a still is set up when all the parts are assembled at one place and are ready for use as a still when connected together. Otherwise a person might assemble all the parts of a still ready for nse and after making a run, by simply unscrewing a pipe and disconnecting the parts, evade the statute.
The sheriff testified that all the parts were there, and that all they had to do to put the still in operation was to connect the pipes and build a fire.
The evident purpose of the statute was to prevent any one from erecting a still and operating it. We think that, when all the parts are assembled and ready for use when the pipes are .connected, a still is set up within the contemplation of the statute. The evidence showed that there was a lot of mash ready to be distilled into spirituous liquors when the still was connected and a fire built under it. This showed that it was the intention of the party owning or operating it to use it for manufacturing distilled spirits for beverage purposes. The defendant was found there bending over, filing something, and ran away as soon as he was discovered. The jury might have found from his action that he was operating the still and was in the act of connecting its parts together for that purpose when he was discovered. This, in our opinion, was sufficient to warrant the jury in finding a verdict of guilty.
Counsel for the defendant also insists that the court erred in instructing the jury and refusing to give certain instructions asked by the defendant. We need not set out the instructions given, nor those refused. Those given are in conformity with the law as laid down in this opinion and those asked by the defendant are predicated upon the idea that the still was not set up within the meaning of the statute so long as its parts were not connected together.
It is next insisted that the court erred in reading sections 1 and 2 of act 324, above referred to, which makes it an offense to set up or operate a distillery in the State of Arkansas. Section 1 makes it unlawful to make or ferment mash, wort or wash. Section 2 makes it unlawful to possess a still. Section 3 makes it unlawful to set up or operate a distillery and defines the word ‘ ‘ distillery. ’ ’
The defendant was indicted under section 3, and the court should not have read to the jury sections 1 and 2 of the statute, for the reason that they had no application. We do not think, however, that any prejudice resulted to the defendant from reading the sections of the statute referred to. The instructions of the court made it plain that he was being tried under section 3 of the act, and his guilt or innocence depended upon the construction tó be given to that section.
When the instructions are considered with reference to the testimony introduced at the trial, we do not think that the jury could have been misled by the reading of sections 1 and 2 of the act to them. It is well settled in this State that a judgment of conviction will only be reversed for errors prejudicial to the rights of the defendant. Sims v. State, 131 Ark. 185; National Union Fire Insurance Co. v. School District No. 60, 131 Ark. 547, and Rogers v. State, 133 Ark. 85.
It is earnestly insisted by counsel for the defendant that the court erred in permitting the sheriff to testify how the parts of a still are put together for making fermented liquors and taking pipes and other parts of it and explaining to the jury how they were connected together.
Counsel rely upon the case of Briscoe v. State, 149 Ark. 648. In that case the court held that, on the trial of the defendant accused of being interested in the manufacture of intoxicating liquors, it was error to permit a prohibition enforcement officer to testify as to what had been his experience in capturing moonshine stills, and as to the habits of moonshiners generally in dismantling stills when the run had been completed and hiding the various parts of the still.
We do not think that case has any application to the facts presented by the record in the present case. The sheriff testified that he had had considerable experience in capturing moonshine stills and understood the parts necessary for their operation in distilling spirituous liquors and how to put them together ready for use.
In determining whether the still was set up within the meaning of the statute, it was competent to show by the sheriff that all the parts of the still were there, so that it was ready for operation when the parts were connected together.
We find no prejudicial error in the record, and the judgment will be affirmed.