86 So. 862 | Miss. | 1920
delivered the opinion of the court.
The appellant, defendant below, was indicted together with one Jesse Stribbling for “feloniously manufacturing intoxicating liquors.” A severance was granted, and the appellant was convicted,, and he was sentenced to confinement in the penitentiary for a term of one month, wherefore this appeal.
We do not believe that we should go into the details of the evidence, but we will merely state that the evidence connecting the defendant with the manufacture of intoxicating liquors was entirely circumstantial. No one claims to have seen the defendant actively engaged in the making of the liquor.
In this state of the case the learned trial judge, at the request of the state, instructed the jury as follows:
“The court instructs the jury for the state that, if you believe from the evidence beyond a reasonable doubt that che defendant aided, assisted, abetted, or knowingly consented to the making and distilling of intoxicating liquors, it is your sworn duty to return a verdict of guilty as charged” —and refused the following instruction for the defendant, viz.:
“The court instructs the jury that before they can find defendant guilty in this cause they must believe from the evidence beyond a reasonable doubt that defendant actively aided, assisted, encouraged, or consented to the*429 manufacture of wliiskey. Mere passive knowledge that whiskey was being made is not sufficient to convict defendant.”
The refused instruction embodied a part of the defense of the appellant, and should have been given, and if it had beep given it would have cured the error of the instruction given by the court at the request of the state. It is not the law that the defendant was guilty merely because he consented to the manufacture of the liquor. Taking the evidence for the defendant, together with that produced by the state, the jury might believe that he passively consented to the manufacture of the liquor; in other words, the jury were Avarr anted in believing that he did not object to the manufacture of the stuff. Mere failure to object or failure to interfere is not a violation of the statute.
Reversed and remanded.