Opinion
36225.
DECIDED JULY 9, 1956. REHEARING DENIED JULY 27, 1956.
Attempt to manufacture whisky. Before Judge Boykin. Troup Superior Court. March 22, 1956.
Wyatt Morgan, for plaintiff in error.
Wright Lipford, Solicitor-General, contra.
1. The court did not err in denying the motion for new trial on the general grounds.
2. The special grounds are without merit.
DECIDED JULY 9, 1956 — REHEARING DENIED JULY 27, 1956.
W. T. Harper, alias Nub Harper, was indicted as follows: "Did then and there unlawfully distill, manufacture and make, distilled spirits, liquor and mixed liquors and beverages." He was found guilty of attempt to manufacture whisky. He filed a motion for new trial on the general grounds and thereafter added two special grounds. The court denied the motion thus made and the defendant assigns error here. The evidence substantially shows: Elay Hanson, a witness for the State, testified that he was a deputy sheriff of Troup County and knew the defendant; that in company with one Mr. Crews, he had occasion to investigate a liquor distillery in the county; that they went in the county car part of the way and went the rest of the way by foot; that they located the distillery and got within twenty-five yards of it; that it was a ground hog type of distillery, 1,400 gallons capacity; that it was flush with the ground; that Mr. Crews approached the still first, then he came back and got the witness; that both of them then approached the distillery from different directions; that the witness knew the defendant; that the defendant was putting wheat bran in, pouring the mash into the still; that the defendant was standing on top of the still; that there were two more men there, Gordon Costley was one and the other man was unidentified; that Costley was stirring the mash and the defendant was pouring the wheat bran into the still; that the still had been previously run, that is, liquor had been made there; that a little whisky was found there, somewhat less than a gallon; that some "low wine" was there also; that low wine is an alcoholic beverage; that the furnace was examined and it was black, showing that liquor had been made there before; that when the officers approached the still the defendant went across the branch "in a hurry" and then down through a briar patch and the officers were not able to catch him; that the officers did not apprehend anybody, that they all ran; that the officers destroyed the distillery; that the officers called one Mr. Scarborough and had him wait at the defendant's home in an effort to apprehend the defendant; that it was approximately six months before they did apprehend the defendant. On cross-examination the same witness testified that he didn't see the defendant with any whisky in his hands but that the defendant was pouring the wheat bran into the container and Costley was stirring it. The witness positively identified the defendant. The witness testified that the paraphernalia was the correct paraphernalia for use in making intoxicating liquors.
Walter Crews, a deputy sheriff of Troup County, who accompanied the other deputy sheriff to the store, testified that they arrived there a little after five in the afternoon and located the distillery; he testified as to the capacity of the still and the method of making intoxicating liquors. He testified that the defendant was standing right over the top of the ground level still, pouring in shorts and that Costley had a long-handled hoe in his hand mixing the shorts; that he knew the defendant well and had known him for some time; that after the defendant and Costley ran away from the still the witness hunted for the defendant regularly until the defendant was apprehended some six months after he was found making intoxicating liquors at the still. He testified that liquor had previously been manufactured at the still and that the officers found almost a gallon of whisky (alcoholic beverage), approximately ten or fifteen feet from the still; that he examined the contents of the still after the defendant ran away and found the "makings of beer to make the alcohol."
The defendant in his statement stated that he just happened to be walking through the woods when he came across the still; that he talked to the three men at the still about five minutes and then walked on and after he was about fifty yards away he heard a noise, heard some shooting and some people running; that he just walked on back to his car and left the premises; that he had nothing whatsoever to do with the still.
1. Under the indictment the defendant was convicted of an attempt to manufacture intoxicating liquors. We have set out the evidence somewhat fully since counsel for the defendant contends that the evidence fails to show any attempt on the part of the defendant. The Code section regarding attempt is § 27-2507, which provides: "If any person shall attempt to commit a crime and in such attempt shall do any act toward the commission of such crime, but shall fail in the perpetration thereof, or shall be prevented or intercepted from executing the same, he shall, in cases where no punishment is otherwise provided for the punishment of such attempt, be punished as follows: . . . Fifth. The attempt to commit a crime punishable by imprisonment and labor in the penitentiary for not less than one year shall be punished as a misdemeanor." This court in Traylor v. State, 77 Ga. App. 439 (1) ( 48 S.E.2d 749) said: "Acts merely preparatory for the commission of a crime, and not proximately leading to its consummation, do not constitute an attempt to commit the crime. Groves v. State, 116 Ga. 516 ( 42 S.E. 755, 59 L.R.A. 598). `Attempt' is more comprehensive than `intent' and implies both the purpose and an actual effort to carry the purpose into execution ( Smith v. State, 126 Ga. 544, 546, 55 S.E. 475), and, in general, to constitute an attempt, there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime."
In Brown v. State, 34 Ga. App. 452 (1) ( 129 S.E. 664), the court held: "Where one is on trial for manufacturing intoxicating liquors, and the evidence tends to show that he was seen at a whisky still, pouring beer or mash into it, and the still was shortly thereafter found to be warm and to have had fire under it, but no quantity of whisky was found or shown to have been distilled, and no evidence was adduced to show who made the beer, a verdict finding the accused guilty of an attempt to make whisky is not contrary to law or without evidence to support it." See also Reese v. State, 34 Ga. App. 453 ( 129 S.E. 886). In Pierce v. State, 40 Ga. App. 227 ( 149 S.E. 160), the court said: "From the evidence it appears that officers saw three men at a distillery, `working around the still, getting it ready to operate . . . getting up the kindling; one was putting on the cap'; and there were four or five boxes of beer there, and `the beer was in condition to run.' One of the witnesses testified: There had been lots of whisky made there before, according to the ashes. There was four or five gallons of backings there. There was some liquor there in a big bucket, I took it to be liquor; I don't know whether I know the difference between liquor and backing or not.' The men ran off. It was testified that the defendant, Alonzo Pierce, was one of the men at the still. The defendant, in his statement at the trial, said that he went to the still with `Hubert,' who said that he was going to get a drink of beer, and he (the defendant) was standing beside the furnace, looking at it, when the officers came and he and the others ran off; that he did not do anything there, did not pick up anything, did not know whose still it was and was not connected with the manufacture of whisky." The headnote of that case reads: "The accused was convicted of manufacturing whisky. The evidence, while authorizing a finding that he was guilty of an attempt to manufacture whisky, was insufficient to support the verdict, and the refusal to grant him a new trial was error."
It will be noted that the facts in that case are almost identical with the facts in the instant case. In Green v. State, 83 Ga. App. 683 (1) ( 64 S.E.2d 476), this court said: "`Presence of a person at a distillery when whisky is actually being made and his flight therefrom on seeing an officer approaching may, when not satisfactorily explained, authorize a jury to find him guilty of manufacturing whisky; and whether an attempted explanation of such presence and conduct is reasonable and satisfactory is a question for the jury.' Strickland v. State, 43 Ga. App. 578 ( 159 S.E. 756). Loughridge v. State, 63 Ga. App. 263 ( 10 S.E.2d 764)." By virtue of the decisions hereinabove cited the jury was authorized to find the defendant guilty of an attempt to manufacture whisky. He was sentenced by the court as for a misdemeanor.
Counsel for the defendant call our attention to Groves v. State, 116 Ga. 516 ( 42 S.E. 755, 59 L.R.A. 598), and quote quite at length from that opinion. Our attention is then called on behalf of the defendant to Coffee v. State, 39 Ga. App. 664 ( 148 S.E. 303). Counsel quote quite at length from that decision. Counsel call our attention to Hartline v. State, 34 Ga. App. 224 ( 129 S.E. 123). We have carefully studied all of the cases relied on by the defendant regarding the general grounds. A careful study of the facts in those cases will differentiate them from the facts in the instant case. In the instant case the defendant was pouring mash in the still while a companion was stirring it in the still. These and other peculiar facts in connection with the case at bar authorize the conviction of the defendant for an attempt to manufacture intoxicating liquors under the allegations of the indictment. It is just as much a violation of the prohibition law to make and manufacture intoxicating beer as it is to distill whisky from alcoholic beer. See Summerville v. State, 77 Ga. App. 106 ( 47 S.E.2d 830); Ellard v. State, 86 Ga. App. 495 ( 71 S.E.2d 666) and Cook v. State, 88 Ga. App. 330 ( 76 S.E.2d 629). It is clear to our minds that the defendant was attempting to manufacture intoxicating beer and that he had proceeded to the extent of doing acts in furtherance of the violation of this statute when he was intercepted and prevented from completing the manufacture of the beer by the presence of the officers. The court did not err in denying the motion for a new trial as it pertains to the general grounds.
2.(a) Special ground 1 assigns error because after the defendant had made a statement in which he denied that he was guilty of the act of pouring the mash into the still the deputy sheriff was recalled and rebutted this portion of the defendant's statement. Counsel for the defendant objected to the sheriff having been recalled to further testify on the question. The judge overruled this objection because it was in rebuttal of the defendant's statement. The court did not err in admitting this testimony for the reason assigned. There is no merit in this special ground.
(b) Special ground 2 assigns error on the following charge of the court: "I charge you further that should you believe beyond a reasonable doubt that this defendant in this county at any time within four years prior to the finding and return of this bill of indictment into court was present at a distillery where any one of the alcoholic, spirituous and intoxicating liquors or beverages named in the indictment were being distilled, manufactured or made and on seeing an officer approaching fled, his presence and flight unless satisfactorily explained to the jury, and of which explanation the jury are the sole and exclusive judges, would authorize a conviction for distilling, manufacturing or making alcoholic or spirituous or intoxicating liquors or beverages as charged in the bill of indictment." We understand this charge of the court is substantially the law of this State and was not subject to the complaint made against it. See Green v. State, 83 Ga. App. 683. Counsel for the defendant calls our attention to the following cases to sustain his position relative to this ground: Thomas v. State, 25 Ga. App. 558 ( 103 S.E. 859); Phillips v. State, 37 Ga. App. 505 ( 141 S.E. 64); Healen v. Powell, 91 Ga. App. 787 ( 87 S.E.2d 332) and Sapp v. Odom, 165 Ga. 437 ( 141 S.E. 201). These cases have no applicability to the facts under which the defendant was convicted in the instant case.
We find no reversible error committed by the court in this trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.