Tumbleson v. StateTumbleson v. State
- Reporters:
- , ,
- Before:
- McCulloch
Aрpellant was convicted on the - following indictment (omitting caption) :
-‘‘The said Ed Tumbleson, on the 3rd day of July, 1922, in the county and-district aforesaid, did unlawfully and feloniously possess and have in his possession a certain still, wоrm and boiler for the purpose and intention of using the same for the production of distilled spirits and for thе distillation and manufacture of alcoholic and intoxicating liquors, against the peace and dignity- of - the State of Arkansas.”
The indictment was framed under the second section of act No. 324 of the General Assembly of 1921 (Acts 1921, p. 372). There was a demurrer to the indictment, which the court overruled, and on the trial of the-.case the State introduced testimony tending to show that there were found on appellant’s farm, near Ms house, a copper stillworm, a five-gallon metal oil can, and a -lot of mash. These artiсles were not connected together so as to constitute a still; but were found in close proximity, аnd there were indications that a still had been operated there.
The evidence was sufficient to sustain a finding that appellant had set up and operated an .improvised distillery for the purposе of manufacturing distilled spirits. McGarity v. State, 151 Ark. 423.
The most serious question in the case. is whether the. language of thе indictment is sufficient to charge an offense under the statute, and the Attorney General confesses error on this point.
It is clear that the indictment is not sufficient, under the first part of the section mentioned abоve, for the reason that there is no allegation that the still or still-worm was not registered. In order to. cоnstitute an offense under that part of the section there must be such an allegation. McIntyre v. State, 151 Ark. 458.
Thе language of the indictment is somewhat confused by the use of the comma between the words “still” and “worm,” but it is evident that the pleader did not intend to use .the word “still” separately from the word “worm” so as to chargе the possession of a complete still. It is clear that the meaning was to charge the possеssion of a stillworm and boiler.
The further question arises, then, whether or not •the language of the indictment is sufficiеnt to charge the offense of setting up a still, or a substitute for a still, within the meaning of the latter part of sеction 2 of the statute. In the recent case of Hodgkiss v. State, 156 Ark. 340, we undertook to make an analysis of this part of the. statute, and in doing so we said:
“The latter part of section 2 relates to the setting up оf the apparatus for use as a distillery, and the thing or things set un must be susceptible of that use. A stillworm cannot alone be used as a distillery, neither can a ‘kettle, waslipot, metal tank, or any other vessel’ alоne be so used. The‘language relates to a complete distillery, technically speaking, or tо any substitute therefor, ‘which, after being set up, may be used for the production of distilled spirits.’ It will be observed thаt the words, ‘any stillworm or substitute therefor,’ are conjunctively joined with the words ‘a still or substitute therefor, ’ which bears out the interpretation that, in order to constitute an offense under this part of the statute, the apparatus set up must be complete so that it may be used for the production of distilled spirits. This part of section 2 of the statute, and section 3 thereof, overlaps to some extent in effect, but an indiсtment may be framed in the language of either. The indictment in this case was intended to state an offensе under the latter part of section 2, but it merely charges the setting up of ‘a certain trough as substitute for a still, for the purpose,’ etc. It does not charge the setting up of a worm in connection with the still, nor thаt the trough was a thing ‘which, after being set up, may be used for- the production of distilled spirits.’ A trough may be fit for use аs a part of the apparatus for the distillation of spirits, but it cannot alone be used for that purрose.”
It is not charged, in so many words, in the indictment that the accused set up a still, but the charge is that he did “possess and have in his possession a certain still, worm and boiler for the purpose and intention of using thе same for the production of distilled spirits.” Nor is it charged in the indictment that the stillworm and boiler were contrivances “which, after being set up, may be used for the production of distilled spirits.” Under this part of the statute the indictment must either charge the setting up of a still, or it must charge the settingup of substituted contrivances оr articles “which, after being set’ up, may be used for the production of distilled spirits.‘” Of course,’ where the сharge in the indictment is that a‘still is set up for the purpose of producing distilled spirits, it is unnecessary to allege that it is such a contrivance as may he used for that purpose, for the definition of the word “still” sufficiеntly indicates its use; hut where there is an attempt to charge the setting up of a substitute, then there must be a сharge that such substitute is susceptible of use as a still, or, in the language of the statute, “after being set up, mаy be used for the production of distilled spirits.”
This indictment neither charges that a still was set up nor such a substitute as could be used in the production of distilled spirits. For that reason the indictment is insufficient, and the court should have sustained appellant’s demurrer.
Reversed and remanded, with directions to sustain the demurrer, and for such further proceedings as the court may deem advisable.