Lofton v. State

ANdeusoN, J.,

delivered the opinion of the court.

Appellant was indicted and convicted in the circuit court of Lee county of a crime of unlawfully manufacturing intoxicating’ liquors, and sentenced to the penitentiary for three years. From that judgment he prosecutes this appeal.

■ On the 3d of March, 1926, Oarr and Ballard, deputy sheriffs of Lee county, acting on information that a still was- being operated on land belonging to Elihugh Estes, went to Estes’ pasture, and found the still in operation. They testified that it was being operated by Sylvester Whitt, Jesse Mitchell, and Drucilla Miller. They found that whisky had been manufactured on the still, and was also being manufactured thereon at the time. Whitt, Mitchell, and Miller were arrested, and at the next term of the circuit court of Lee county they were indicted on the charge of manufacturing intoxicating liquors, and plead guilty. The testimony of the officers was that, at the time the still was found, only Whitt, Mitchell, and Miller were present and engaged in its operation; and their testimony, in connection with the other testimony in the case, showed that appellant was not present at the time, and therefore was taking no part in the operation of the still. Appellant was not arrested until some time after the arrest of Whitt, Mitchell, and Miller. Whitt, after pleading guilty to the charge of manufacturing' whisky, was introduced as a witness on behalf of the state, and testified, in substance, that appellant owned the still, and that lie and appellant were operating it together, and were partners in the output of the still; that, about half an hour before the officers raided the still, appellant left the still with a jug of whisky and a gun, for the purpose of hiding the whisky; that this whis-ky had been manufactured on the still; that under their arrangement it was appellant’s duty on the day of the raid to watch while the others tended the still; that the mash found at the still belonged to appellant, who had prepared it, and, using the language of the witness, ‘‘we were sort of partnership, me and Mr. Lofton.”

It is argued on behalf of appellant that the jury should have been directed by the trial court to acquit appellant, because of the absence of any evidence whatever to show that appellant was personally present aiding and abetting' in the manufacture o'f the liquor when the still was raided by the officers and found in operation. Except for the testimony of the witness Whitt that appellant owned the still, and that he and the appellant were operating it,, and jointly interested in its output, appellant’s position would be well taken. But one may be guilty of the unlawful manufacture of intoxicating liquors without ever having be.en present personally at the still on which the liquors are manufactured, of taking manual part in its manufacture. He may be guilty through the acts of an agent or a partner, regardless of whether such an agency or partnership would be legal. For illustration, A, gives B, the money to buy a still on which to manufacture intoxicating liquors. They agree that B. shall purchase the still with A.’s money, locate it and operate it, and sell the whisky manufactured thereon, the proceeds thereof to be divided equally between them. They carry out the agreement. A.' has never seen the still. He does not even know where it is located. Nevertheless, under the law, he is guilty of the unlawful manufacture of intoxicating liquors. Appellant argues that under the law there can be no partnership or agency in the unlawful manufacture of intoxicating liquors. That is true. It does not follow, however, that through such an illegal partnership or agency either party thereto can escape punishment on the ground that he had taken no part in the operation of the still. The fact that Whitt, when he testified, had plead guilty to the same character of charge upon which appellant was being tried only went to his credibility as a witness. Taking the whole evidence together, the jury had the right to believe or disbelieve his testimony. They are supposed to have found the truth of the matter. In doing so, they must have believed Whitt’s testimony. We think it clear that appellant was not entitled to a directed verdict of acquittal.

The evidence of the officers who found the still to the effect that it was being operated by Whitt, Mitchell, and Miller, and that appellant was not present, was objected to by appellant as having no bearing on his guilt. Their evidence was admitted by the court, and the action of the court in so doing is assigned and argued, on behalf of the appellant, as error. What we have already said is probably sufficient with reference to that contention. We will say further, however, that, in order to make out a case against appellant, it was necessary to prove the corpus delicti, as it is in all criminal cases. The corpus delicti in this case was the unlawful manufacture of intoxicating liquors. Without the evidence that intoxicating liquors were being manufactured at the time the still was raided, there would have been no case made against the appellant:

The appellant undertook to show his innocence of the charge by proving an alibi.' He undertook to prove, and it was shown without any conflict in the evidence, that appellant was not present when the officers raided the still and found it in operation. Appellant’s wife testified in his behalf. The purpose of her testimony was to prove that appellant was not present at the time the raid was made. Amo'ng other things, she stated that her husband, at the time in question, left home and went over to her father’s store, but she did not go with him. The district attorney objected to her testimony as to where the appellant went, in view of the fact that she could not have known where he went when he' left home. The court sustained the objection. In ruling on the question, the judge said in the presence of the jury: "She did not know where he went.” Appellant argues that that language of the court was unauthorized by law, and prejudicial to his case. We think the statement of the court was entirely without harm to the appellant. The court only stated a fact which was undisputed; namely, that the wife of the appellant did not know where her husband had gone.

The appellant complained of the action of the court in giving the following instruction for the state:

"The court charges the jury for the state that, if they believe from the evidence beyond a reasonable doubt that defendant Cliff Lofton was a partner in the unlawful manufacture of intoxicating liquo'r, it makes no difference under the law whether he was actually present at the still when said liquor was being manufactured or not, provided you believe from the evidence beyond a reasonable doubt intoxicating liquor was being manufactured at the time and place and in the manner and form as charged in the indictment.”

Appellant’s criticism of the instruction appears to be that the jury were told by such .instruction that they should find the appellant guilty if he was a partner in the unlawful manufacture of liquor. Appellant argues that under the law there can be no partnership in the unlawful manufacture of intoxicating liquors. Conceding that to be true, still we think the instruction is without harm to appellant. It could not have misled the jury. The jury, as reasonable men, knew that the court-meant to tell them, by the use of the word “partner," that, if appellant was interested in the operation of the still, he was guilty. It was a matter of indifference whether appellant was interested in the operation of the still as a partner or otherwise, provided he owned an interest in the still, and the still was being operated under an agreement by which he received part of the profits thereof. The common understanding could have put no other interpretation upon this instruction, as we think.

Appellant assigns and argues as error the action of the court in refusing the following instruction requested on his behalf:

“The court instructs the jury for the defendant that the defense of alibi is a'legitimate defense, and, if from a consideration of the evidence you should have a reasonable doubt as to whether the defendant was at the place or not, or if you have, a reasonable doubt as to whether the defendant was at his house ot whether he was at the still, he would be entitled to the benefit of that doubt, and you must acquit him on the defense of alibi.”

Under the evidence in this ease an alibi was no defense. The fact — and it was an undisputed fact — that, when the officers raided the still, and found it in operation, and appellant was not present at the time, was wholly immaterial. This instruction sought to have the court tell the jury the very converse; that is, if he was not present at the time the still was raided and found in operation, he was entitled to an acquittal. We think it clear that the court committed no error in refusing that instruction.

Affirmed.