Patterson v. State , 127 Miss. 256 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

The appellant was convicted in the court below on an indictment charging that he “did then and there unlawfully make and distill intoxicating liquors,” etc., and one of the assignments of error is that the indictment is fatally defective for the reason that it omits to charge that the liquor was made and distilled “feloniously.”

Section 18, chapter 189, Laws of 1918, provides that— “Any person . . . who shall . • . . make, or distill . . . intoxicating liquors . . . shall be guilty of a felony, and upon conviction, shall be punished by imprisonment in the penitentiary,” etc.

The language of the statute in which the indictment is couched accurately informs the appellant of the nature and cause of the accusation against him; consequently the question of the omission of the word “feloniously” from the indictment cannot be raised in this court for the first time. Section 1426, Code 1906 (section 1182, Hemingway’s Code); Cook v. State, 72 Miss. 517, 17 So. 228.

It is true that an omission of this character was permitted tó be taken advantage of for first time in this court in Hays v. State, 57 Miss. 783, but the statute hereinbefore referred to, though calléd to the court’s attention by counsel, seems not to have been considered by the court in reaching its decision. Consequently we decline to follow it, and, in so far as it permits the alleged defect in the indictment here under consideration to be taken advantage of in this court for the first time, it is hereby overruled.

The evidence introduced by the state is in substance that the appellant was arrested by the sheriff without a warrant, charged by him with making whisky, and told that he might as Avell admit it and show the still to the sheriff, for, if he did not, the sheriff Avould show the still to the appellant; that the appellant then conducted the sheriff to a thicket near his residence where a still was concealed, and gave the sheriff about three pints of whisky which he got from his residence a short distance from the still and admitted that the still was his and that he had made the whisky himself.

The evidence for the defendant is in substance that he did not admit either the ownership of the still or the making of the whisky, but that, on the contrary, neither of them belonged to him; that he did not know that the still was there, though he had susp'ected that a still was probably being used there by some one, because of certain things that had been brought to his attention, for which reason he had conducted the sheriff to the thicket when he was arrested; that on the day of his arrest two men, neither of whom was the appellant, were seen in the thicket where the still was found with a fire under the boiler of the still; that these men fled on being discovered, and what they were making, if anything, was not ascertained by the witnesses who saw them; that the whisky delivered by the appellant to the sheriff was brought to him in a bucket and left with him for safekeeping by a man whom he had seen several times, but had not met before nor seen since..

One of the assignments of error is that the corpus delicti was not proven by evidence aliunde the confession. If the appellant’s conviction rested only on the evidence introduced by the state, this assignment of error might not be without merit, but in determining whether or not the evidence aliunde the confession is sufficient to prove the cor pus delicti — that is, that intoxicating liquor had been unlawfully made — we are not confined to the evidence intro-introduced by the appellant as well as that introduced by the state, and on the whole evidence .aliunde the confession the jury were warranted in believing that some one had unlawfully made intoxicating liquor.

Where a confession has been introduced, it may be considered together with other evidence to establish the corpus delicti} and a conviction will be upheld, provided the evidence aliunde the confession is of such character as will satisfy “the mind that it is a real, and not an imaginary, crime which the accused has confessed." Heard v. State, 59 Miss. 545; 2 Wharton’s Criminal Evidence (10th Ed.), 1316.

Affirmed.