Walker v. State , 127 Miss. 246 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

The appellant was convicted of the unlawful making and distilling of intoxicating liquor and appeals to this court. The evidence for the state is in substance that a sheriff raided the appellant’s premises and found there a still which smelt as if it had come, in contact with alcohol, and a barrel of mash, the quality of which does not appear, and that the appellant admitted to the sheriff that he had made two quarts of liquor at another place several days before.

At the close of the evidence, a request by the appellant to exclude the evidence and to grant him a peremptory instruction was refused. Tbis ruling of tbe court is assigned for error, tbe ground of tbe assignment being that the. corpus delicti was not proven by evidence other than tbe confession.

A confession may be considered, together with other evidence, to establish the corpus delicti, that is, the fact that a crime has been committed, but the evidence aliunde the confession must be of such character as will satisfy “the mind that it is a real and not an imaginary crime which the accused has confessed.” Haerd v. State, 59 Miss. 545; 2 Wharton’s Criminal Evidence (10th Ed.), 1316. In the case at bar the evidence aliunde the confession not only fails to satisfy the mind that a crime had been committed, but on the contrary negatives that such was the case, for it is simply to the effect that some one was preparing to make, but had not made, intoxicating liquor. One of the witnesses who accompanied the sheriff on the raid sized up the situation with technical accuracy when he said, referring to the appellant:

“He had made some mash up fixing to make a run. We were just a little too early; we did not catch him in the act.”

Moreover, the crime confessed was the making of intoxicating liquor at a time and place other than that when and where the still and mash were found in the appellant’s possession. Consequently, there is no evidence aliunde the confession of the commission of the crime confessed.

The judgment of the court below will be reversed and the appellant discharged.

Reversed, and appellant discharged.