Kidd v. State ( 1924 )

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted at the August term, 1922, of the circuit court of Lauderdale county, for the unlawful and felonious manufacture and distillation of intoxicating liquor. The offense was said to have been committed on April 15, 1922, when the prohibition enforcement officers made a raid upon a still being operated in Lauderdale county, Miss. The officers testified that they came up to the place where the still was in operation, having two boilers, and that they got within twenty to twenty-fiye yards of the still, and saw five or six men there; this boy, John Kidd, being one of them. They saw the boy go from where the whisky was running at the worm, back close to where the fire was, and stoop over there, and that he had something in his hand; that at about that time some one shot in the thicket, and the officers rushed in and caught the boy; that the still was in full operation, and fifteen to eighteen gallons of whisky were captured.

The boy was carried to Meridian, and was asked by the prohibition officer what he was doing making whisky, that he was mighty young to be engaged in that business, and that the boy said to him that the still was not his, but belonged to Mr. Turnage, and that all he was getting out of it was one dollar a day. This confession was testified to by two prohibition officers. The boy testified that he had nothing to do with the still; that he was not engaged in the business, and was not in the employment of Mr. Turnage, but that he worked for another man by the name of Tnrnage on a farm nearby. The boy’s mother testified that she hired him to the other Mr. Tnrnage, and that he did not work for the Tnrnage who ran the still. Turnage, the owner of the still, prior to this trial had been convicted of distilling and sentenced to the penitentiary, and testified in this case in behalf of the defendant, stating that the boy had nothing to do with the still and was not employed by him. The defendant was convicted and sentenced to the county jail, instead of the penitentiary.

It was insisted, first, that the evidence was insufficient to sustain the conviction. We think th'e evidence is ample to establish the corpus delicti, that the boy'was present, and to establish his confession as to his participation in the manufacture, and that the conviction must be upheld, and when the corpus delicti was established, the confession and the fact of his being present is sufficient to convict him.

It was next insisted that the court erred in sentencing the boy to the county jail instead of to the penitentiary, and that the act of the legislature defining offenses prescribes the punishment as imprisonment in the penitentiary.* There was a recommendation by the jury of mercy on account of the youth of the defendant. It appears from the evidence that the defendant at the time of the offense was fourteen years of age, and'that at the time of the trial, 'which was a little more than two years after the commission of the offense, that he was seventeen years of age.

Section 1513, Code of 1906 (section 1271, Hemingway’s Code), reads as follows:

“When the court shall be satisfied that a pelson who has been found guilty of a felony not capital is not more than sixteen years of age, the punishment imposed may, in the discretion of the court, be imprisonment in the county jail not exceeding one year, instead of imprisonment in the penitentiary.”

In our view, this section is intended to mitigate the punishment for offenses committed by youth under sixteen years of age, and this section must be construed in connection with all other sections defining punishments for felonies less than capital, and authorized the judge in his discretion to sentence such offenders to the county jail not exceeding one year rather than to the penitentiary. This was evidently the view of the trial judge, and the judgment will.be affirmed.

Affirmed.