86 So. 897 | Miss. | 1920
delivered the opinion of the court.
The appellant, defendant below, was jointly indicted with one J. M. Powers “for feloniously manufacturing and distilling intoxicating liquors.” A severance was granted and appellant ivas convicted, and from the judgment sentencing him to confinement in the penitentiary for one year, this appeal ivas prosecuted.
It is earnestly insisted that the evidence was insufficient to sustain a conviction, and that the peremptory instruction requested by defendant should have been granted. Without detailing any of the evidence, it is sufficient to say that the peremptory instruction was prop-' erly refused.
The court granted an instruction for the state which reads as follows:
“The court instructs the jury for the state that, if you believe from the evidence beyond a reasonable doubt that the 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.”
This instruction is erroneous. A person who is present, consenting to the commission of an offense, and who aids, abets, or encourages its commission, is guilty as a principal, but this instruction authorizes the conviction of the defendant if he merely consented to the manufacture of the intoxicating liquor. This is not the.laxv, and the error in this instruction was not cured by any instruction granted the defendant.
Over the objection of appellant, Dr. Williams, the sheriff was permitted to testify that, after appellant and Powers, his codefe.ndant, were arrested, Powers stated that the appellant knew where the still was located and could point it out to the sheriff, but appellant at once denied
•For the errors herein indicated, this cause is reversed and remanded.
Reversed and remanded.
