Perkins v. State

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for having an integral part of a still in possession, the possession of which is prohibited by chapter 245, Laws of 1924. The evidence, in substance, is as follows:

A deputy sheriff, pursuant to a warrant therefor, searched appellant’s premises, and found thereon a one hundred-pound lard can, with mud daubed around the edges of the top “to keep,” in the language of the witness, “the steam from escaping;” two or three lard can tops, one of which fitted the one hundred-pound can, and which had a hole in the center around which mud had been daubed; and a piece of iron pipe, the length of which does not appear. These articles were not found together, but all were on the appellant’s premises. The pipe “smelled strongly of whisky,” but no such odor was emitted from the can or tops. There was no evidence that these articles were or could be used as parts of a still, except a statement, which one of the witnesses said the appellant had made to him, to the effect that he knew they had been used for a still. The appellant testified that he found the articles in hauling staves out of a swamp; that he brought them home, and, in his language, “throwed it off at a wood pile, and did not try to hide it.” He disclaimed any knowledge of their having been used as parts of a still.

One of the assignments of error is that the evidence is insufficient to support the verdict. It is true that a land can may be used as a boiler for and an iron pipe for another part of a crude still, but neither of them are specially designed therefor and are in common use in many if not most homes for other purposes. When such articles are actually integrated into a still, thoug’h a crude one, they are, of course, integral parts of such still; but whether they are such before being integrated into a still or remain such after the still is dismantled, and they are removed therefrom, depends on circumstances, the effect of which must be determined as each case arises.

There is no evidence here which would warrant a holding that this lard can and pipe were suitable for or had been used as integral parts of a still, except, probably the evidence of the appellant that he found them in a swamp, and his extrajudicial statement that he knew they had been so used. The former is insufficient and the latter can be taken into consideration only after the corpus delicti has been otherwise established. •

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

Reversed cmd remanded.