Dill v. State ( 1928 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 83, n. 86; p. 113, n. 16; p. 115, n. 31; Intoxicating Liquors, 33CJ, p. 579, n. 7; On necessity of an "overt act" tending to commission of crime, see 8 R.C.L. 279; 2 R.C.L. Supp. 588; 4 R.C.L. Supp. 544; 5 R.C.L. Supp. 463; 6 R.C.L. Supp. 498. The appellant, Elzie Dill, was convicted in the circuit court of Monroe county on a charge of attempting to manufacture intoxicating liquor, and was sentenced to the penitentiary for two years, and from this conviction and sentence he prosecuted this appeal.

The indictment on which the conviction of appellant is based was drawn under section 1049, Code 1906 (section 813, Hemingway's 1927 Code), which provides that every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof shall be punished as provided by the statute, and the indictment charges that the appellant "did feloniously attempt to manufacture intoxicating liquor by then and there feloniously and knowingly preparing a compound called ``mash,' which said compound is essential to the manufacture of intoxicating liquor, and by feloniously assembling a still in which to distill said mash into intoxicating liquor, which said still is essential in the manufacture of intoxicating liquor."

The appellant was not represented by counsel in the court below, and he offered no testimony. The testimony for the state shows that certain officers located a complete still and several barrels of mash in a hollow at the foot of a large hill; that there was no one at the still at that time; and that it was not then quite ready to operate. On a later date they returned to the still and secreted themselves. Shortly thereafter a car came along a roadway which circled the top of the hill, and stopped about two hundred yards from the still. The appellant stepped out of this car and came down a trail which led from the road to the still, and when he had reached a point about fifteen or twenty feet from the still, the officers arrested him. The officers attempted to again secrete themselves to await the arrival of another man who was left in the car. This party drove the car a little further down the road, and there got out of the car, but immediately got back in and drove away, having, presumably, discovered the presence of the officers at the still. The appellant was then asked how long it would have been before he would have had a fire under the still, and he replied: "I would have had it there in fifteen minutes." On being asked if he ever made any whisky, he stated: "Yes; I have made some whisky; and I am going to make some more as soon as I get out of this."

In a prosecution for an attempt to commit an offense, under the above-mentioned statute, it is necessary to charge and prove some overt act done toward the commission of the offense; and, in the indictment in the case at bar, the overt acts charged are that the appellant feloniously and knowingly prepared "a compound called mash," and "assembled a still in which to distill said mash into intoxicating liquor." An overt act is one which manifests the intention to commit the crime; and, it is true that "whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt." Stokes v. State,92 Miss. 415, 46 So. 627, 21 L.R.A. (N.S.) 898. In the case at bar, however, the overt acts are particularly and properly set forth in the indictment, and the question to be decided is whether or not the facts in evidence establish, or tend to establish the overt acts charged. A mere intention to commit a crime is not punishable, and although it may be, with reason, argued that the statement of appellant, that "he would have had a fire under the still in fifteen minutes if he had not been arrested," indicated his intention to operate the still and manufacture liquor, yet we do not think this statement was sufficient to warrant the jury in finding that he prepared the mash and assembled the still, as charged in the indictment.

The judgment of the court below will therefore be reversed, and the cause remanded.

Reversed and remanded.