Hall v. State , 151 Tenn. 416 ( 1924 )

Mr. Justice Cook

delivered the opinion of the Court.

Plaintiffs in error were convicted of manufacturing whisky in violation of chapter 14, Acts of 1923, each fined $350, and committed to the workhouse five months.

Through assignments of error, it is urged on behalf of the accused' that the verdict is not supported by the evidence, and that chapter 14, Acts of 1923, violates the Constitution and is void. First, it is said that the act creates two distinct offenses — one for manufacturing and another for attempting to manufacture whisky — and embodies two subjects contrary to article 2, section 17, of the Constitution. Chapter 14, Acts of 1923, was sustained in Frix v. State, 148 Tenn., 478, 256 S. W., 449, against this criticism; the conclusion of the court being that section 2 relates to and defines the particular offense denounced by section 1 of the act.

Second, it is insisted that by declaring the act of preparation a fact conclusive of guilt, the legislature impaired the right of trial by jury, and deprived those accused of their liberty and subjected them to fines contrary to the law of the'land, rights assured by article 1, sections 6 and 8, of the Constitution.

The power to define what shall constitute a criminal offense is committed to the discretion of the legislature, subject to constitutional limitation and safeguards, beyond which the courts do not let the legislature pass.

“The legislature in creating an offense may define it by a particular description of the act constituting- it, or it may define it as any act which produces, or is reasonably calculated to produce a certain defined or described result; or it may group together various means by which the end may he accomplished and make any one of such means an offense when done to attain the object denounced by the statute.” 16 C. J., 67.

To constitute the offense of manufacturing whisky and brandy under the definition given in section 2 of the statute in question, acts of preparation required to constitute the offense must be attended by proof of facts and circumstances which establish the overt act, and which in the ordinary, usual, and natural course of things accomplish the offense. This would be necessary to constitute the attempt to manufacture.

The hypothetical case presented in the brief of counsel would hardly pass the judgment of a court. It' could not be said that the buying of a knife to kill a man would constitute murder, nor that the buying of kerosene to burn a house would constitute arson, nor that the buying of sugar to make whisky would constitute manufacturing. To constitute the offense of “manufacturing,” within the definition of chapter 14, Acts of 1923, such a combination of circumstances must be presented as justifies a conclusion that the accused was actually making whisky.

Plaintiffs in error were arrested at a still concealed in a thicket on the premises owned by the mother of the Smiths. Fire was under the boiler, five or six barrels of mash, three or four fruit jars of whisky were at the site, and there was every indication of recent operation. Tom Smith and Engene Smith had mash on their clothes, and Paschal Travis, who was arrested along with the others, testified for the State that the Smiths, George Plall, and Carl Robinson were operating the still, and that a little while before the officers appeared the cap blew off of the boiler and burned Carl Robinson, who the officers say escaped when they arrested the other parties.

Eugene Smith and Tom Smith say that they discovered on that day that the still was operated on their mother's premises, and went to the scene to canse its removal, and were arrested while there. Hall explains that he went there to see Gene Smith. All deny that they had any interest in the outfit or that they aided in its operation. They insist that their presence at the still site was without intent to aid in a violation of the law.

The jury heard the testimony of the officers descriptive of what they found when they arrested plaintiffs in error at the still, and they also heard the testimony of the Travis boy who was at the still before the officers approached. Upon the facts presented, it was a question for the jury to determine whose testimony they would believe. They rejected the theory of the defense, and it cannot be said that the evidence preponderates against the verdict; but, on the contrary, that it sustains the verdict of the jury.

Affirmed.