Opinion
No. 36016.
December 10, 1945.
1. INTOXICATING LIQUORS.
Evidence that officers at former site of a still found integral parts of the still from which a coil was missing without which the still could not operate was insufficient to sustain a conviction for unlawful possession of a still (Code 1942, sec. 2632).
2. INTOXICATING LIQUORS.
Indictment charging in single count that defendant did own, control and knowingly possess a still, the still being owned, controlled and knowingly possessed by the defendant for use in the unlawful manufacture of intoxicating liquor, drawn under the statute penalizing the unlawful possession of a still, or any integral part thereof, was insufficient to embrace the alternative charge of possession of the integral parts (Code 1942, sec. 2632).
3. INDICTMENT AND INFORMATION.
Generally, the conjunction "and" must be substituted for the disjunctive "or" where an indictment seeks to embrace an alternative charge unless to do so would result in repugnancy.
4. INDICTMENT AND INFORMATION.
An indictment for the unlawful possession of a still in seeking to charge the alternative offense of possession of any integral part thereof should have charged such alternative offense in a separate indictment or a separate count in the same indictment so as to inform the defendant of the exact nature of the charge the indictment preferred against him (Code 1942, sec. 2632).
5. CRIMINAL LAW.
Where conviction could not be sustained under charge in indictment on the evidence advanced against defendant, and after defendant's motion to exclude the state's testimony, defendant elected to introduce his own evidence and no request was made for a peremptory instruction at the end of all the testimony, but a motion was made for a new trial which was overruled, the Supreme Court could only reverse and remand the cause.
APPEAL from Circuit Court of Grenada County, HON. JOHN F. ALLEN, Judge.
S.C. Mims and W.B. Nichols, both of Grenada, for appellant.
The appellant was charged with the possession of a still. There was no proof that a still was found. In other words, the corpus delicti was not established. It is true that the officers testified that they found barrels with mash in some of them, and what they termed a cooker and a cooler, but no worm, — the absolute essential requirement of a distillery. This is a far cry from what is commonly known as a still, the possession of which is denounced by the law. The articles found did not constitute the integral parts of a still.
Pickle v. State, 151 Miss. 549, 118 So. 625; Skinner v. State, 198 Miss. 505, 23 So.2d 501.
But if granted that the barrels, and what the witnesses described as a cook and cooling barrel, constitute the integral parts of a still, we respectfully submit that the possession of a still and the possession of the integral parts thereof are two distinct and separate crimes, and the conviction of the appellant on this proof cannot be sustained.
Woodall v. State, 129 Miss. 854, 93 So. 366.
The Attorney General in his brief takes the position that the appellant failed to make the proper objections and motions to reserve his rights in this appeal. Be that as it may, the appellant in his motion for a new trial called the attention of the learned trial court to the fact that the testimony offered by the state was insufficient to sustain the verdict returned by the jury.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The appellant first argues that the corpus delicti was not established. In a charge of unlawful possession of a still, the corpus delicti is proved by showing the existence of the still and that it was used for unlawful purposes, and, where this has been established, the confessions of the defendant are competent and sufficient to prove his possession of said still.
Osborne v. State, 146 Miss. 718, 111 So. 834.
The next argument of appellant is that the articles found do not constitute the integral parts of a still, citing the case of Pickle v. State, 151 Miss. 549, 118 So. 625. This case does not support the argument of appellant in that the opinion admits the still was found but the case was reversed on the ground that the evidence (circumstantial) was insufficient to establish the guilt of the appellant as to the ownership, control or possession.
The appellant argues that the possession of a still and the possession of the integral parts of a still are distinct and separate crimes and that the proof is insufficient in this case, citing the case of Woodall v. State, 129 Miss. 854, 93 So. 366. In this case the court held that an indictment charging a sale of intoxicating liquor is not supported by proof of a barter. I submit that this case is not applicable to the case at bar.
Throughout the trial of this case this question was raised, but, on the other hand, it was admitted that the implements found constituted a still and the defense was that the appellant did not own, control or possess this still.
Appellant was convicted in the Circuit Court of Grenada County of the crime of the unlawful possession of a still. Sections 2632 and 2633, Code of 1942.
Two deputy sheriffs found what they said were signs of the former site of a still near the appellant's home, which still appeared to them to have been recently removed. They followed fresh wagon tracks to a point about half a mile away in the woods, where it led, they testified, from appellant's house nearby. They did not find any still at appellant's home, did not see any still loaded, but followed the tracks of a wagon on which they supposed it had been loaded, by appellant's house and in ten feet thereof, through a mule lot, down a hillside into the bottom, where they say they found loaded on a wagon a bunch of barrels, mash barrels with yellow corn mash in them, and cooking utensils, and cooling barrels, but they found no coil. One of the deputies was asked by the District Attorney: "Were those integral parts of a still?" To which he replied, "Yes, sir."
The indictment reads as follows: "Wilfully, unlawfully, and feloniously did own, control, and knowingly possess a still, the said still being then and there owned, controlled and knowingly possessed by the said Hayward Black for use in the unlawful and felonious manufacture of intoxicating liquor." The statute on which the indictment is based is Section 2632, Code 1942, as follows: "It shall be unlawful for any person, firm, or corporation to own or control or have in his or its possession any distillery commonly called a still or any integral part thereof."
It will be noted that a complete still was not found, the coil was missing, an absolutely essential part of a complete still. So, in our judgment, the articles found by the officers, in the wagon on this occasion were no more than integral parts of a still. Furthermore, the parts so found were not assemblable into a still for distilling alcoholic beverages in the absence of the coil. This being true, the Court erred in refusing to sustain appellant's motion for a new trial on the ground that the verdict was against the weight of the evidence. In truth, there was no evidence of the possession of a still. As stated, supra, the charge was unlawful possession of a still. The verdict was a finding of guilt as charged. The evidence covered only integral parts of a still, less than a complete still, and not enough to make the parts operable as a still which is the sum of all of its parts and not of some of its parts.
The allegations of the indictment do not include the alternative charge of possession of integral parts. It could not properly do so in a single count. Generally, the conjunctive "and" must be substituted for the disjunctive "or" when indictments are drawn under statutes as the one under consideration, unless to do so would result in repugnancy. State v. Sam, 154 Miss. 14, 122 So. 101; Sauer v. State, 166 Miss. 507, 144 So. 225; West v. State, 169 Miss. 302, 152 So. 888. Under the facts of this case, the alternative offense of possession should have been charged in a separate indictment or a separate count in the same indictment, so as to have informed appellant of the exact nature of the charge the indictment preferred against him, Miller v. State, 130 Miss. 730, 95 So. 83, before conviction could be sustained under the proof as made.
The case of Woodall v. State, 129 Miss. 854, 93 So. 366, while not exactly in point here, because of the differences in the subject matter, is interesting when considering the policy of our jursprudence in dealing with the disjunctive "or" in criminal statutes. In that case we said: "The statute recognizes the difference between a sale and a barter; its provisions being that, `if any person shall sell or barter, . . . any vinous, alcoholic, malt, intoxicating, or spirituous liquors.'" Another interesting case, relevant to the issue under discussion, in our decisions is Powell v. State, 196 Miss. 331, 17 So.2d 524, wherein it was said: "A criminal prosecution is not begun by the affidavit for, and the issuance and execution of, a search warrant. A search warrant is a preliminary or else an ancillary writ. It is not a part of a search warrant, or the proceedings under it, to try the person in whose possession the contraband described in the warrant affidavit was found, but an additional affidavit, or an indictment, must be made or obtained charging the person with the particular crime of which the evidence indicates he is guilty. Cornelius Search and Seizure, 2d Ed., p. 604. This is demonstrated by the fact that search warrants are often based upon two or more statutory grounds in the disjunctive, as validly may be done, Banks v. City of Jackson, 152 Miss. 844, 120 So. 209, and as was done in the case now before us; but a defendant may not be put to trial on two or more charges in the disjunctive. 31 C.J. 663."
In view of what we have said supra, we are of the opinion this conviction cannot therefore be sustained under the charge in the indictment on the evidence advaced against appellant. Motion was made to exclude the state's testimony at the end thereof, which was overruled. However, appellant elected to introduce his own evidence thereafter. No request was made for a peremptory instruction at the end of all the testimony. A motion was made by appellant for a new trial as stated, supra, which was overruled. This was reversible error, in our opinion. In this case, as in the recent case of Reese v. State, 198 Miss. 843, 23 So.2d 694, all we can do is to reverse and remand the cause as there is no error of the trial court for which we could act otherwise; the case against appellant not being supported by the evidence, which point was duly preserved in his said motion for a new trial.
Reversed and remanded.