Opinion
October 11, 1948.
1. Criminal law — still, possession of integral parts.
Under an indictment charging the possession of the integral parts of a still, the accused may be convicted on proof that he was in possession of a complete still. Section 2632, Code 1942.
Headnote as approved by Alexander, J.
APPEAL from the circuit court of Copiah County; J.F. GUYNES, J.
Hunter Garth H.C. Stringer, for appellant.
We find at the very threshold of this discussion lies a legal question which will determine whether or not this case should be reversed. The prosecution indicted appellant for having the integral parts of a still in his possession. The proof disclosed that appellant did not only have these unlawful parts of a still in his possession, but had these parts properly assembled and actually distilling intoxicating liquor.
The appellant should have been indicted on the charge of manufacturing liquor and not for having the integral parts of a still in his possession.
The rule announced in the Hughes v. State case, 98 So. 516 rules this case. George H. Ethridge, Assistant Attorney General, for appellee.
Counsel makes the argument that instead of appellant having possession of integral parts of a still that he had the entire still and it was in operation according to the proof for the State. Section 2632, Code of 1942, makes it unlawful to have possession of a still. Section 2631 makes it unlawful for a person, firm or corporation to manufacture or distill vinous, malt, spirituous, or intoxicating liquor or drink which if drunk to excess will produce intoxication. That section is not involved in this prosecution and appellant was not being tried for violation of it under the indictment. They constitute separate offenses.
Appellant was convicted under Code 1942, Section 2632, for having in his possession integral parts of a still. The only point reserved and argued on his appeal is that the defendant should have been awarded a directed verdict because the testimony showed without question that he possessed, if anything, a complete distillery.
(Hn 1) We stated in Black v. State, 199 Miss. 147, 24 So.2d 117, that an indictment for possessing a complete still and for possessing integral parts thereof was duplicitous. They are separate offenses. Non constat, however, that one may not be tried and convicted upon a charge which is less than a completed offense. We are not confronted with a case where there is a conviction for a constituent element of an offense charged, but a conviction for constituent parts of a prescribed device. There is no election between offenses charged but rather as to what was to be charged.
The state may have proved more than was required. Of this the defendant may not complain, especially since such proof was relevant to the offense charged.
Affirmed.