Mississippi Supreme Court, 1937

Magee v. State

Mississippi Supreme Court · Decided March 29, 1937 · Ethridge

173 So. 299; 178 Miss. 271; 1937 Miss. LEXIS 214 (Southern Reporter)

Counsel

R.B. Reeves, of McComb, for appellant. It is our contention and our conception of the law that you cannot seduce from a prisoner a confession by a promise through fright or fear or by the promise of a reward. And in this case Mr. Guy at the time he arrested the appellant found nothing on earth in his possession or under his control and yet with the use of a pump gun, he forced or suggested to his prisoner that the still be put together and that they would then catch the guilty party. It is our contention that in the trial of this case the state should have been allowed to introduce only such evidence as it had at the time the appellant became a prisoner because it is not conceivable that an officer of the law could place under arrest a prisoner and force him at the point of a gun to violate the law and then use the evidence secured or acquired after the prisoner became a prisoner in the trial of his case. It would be a sad time in Mississippi when an officer might arrest a man and force him at the point of a gun, a six shot repeating shotgun, and force him to put together the parts of a still that he gathered from the woods, and to then manufacture whiskey and then this same officer use this same evidence against the prisoner and for him to serve two years in the state penitentiary. Mr. Guy, the arresting officer, would not deny that he himself suggested that a fire-be built under this still. Mr. Magee testified positively that Mr. Guy did make the suggestion, and Mr. Guy admitted on the stand that he did not believe that he had the guilty party, and that it was his purpose to put this still together, build a fire under the still and catch the guilty man. The only sensible conclusion we can reach is that Mr. Guy believed that the appellant knew whose still this was and when the appellant refused to tell whose still it was that then he was prosecuted for the crime. W.D. Conn, Jr., Assistant Attorney-General, for the state. Evidence for the state which tends to show guilt of the crime charged will be considered most favorably to the state by this court and the testimony of the state's witnesses will be accepted as true since the jury has believed the witnesses for the state and they are the sole judges on matters of weight and credibility. Redwine v. State, 149 Miss. 741 , 115 So. 889 ; Pruitt v. State, 163 Miss. 235 , 140 So. 683 ; Boutwell v. State, 165 Miss. 16 , 143 So. 479. Where the existence of a still and its unlawful use has been established, the corpus delicti of the crime of the unlawful possession of a still is established. And, when the corpus delicti has been established, confessions are competent and sufficient to prove the other element, namely possession. Osborne v. State, 146 Miss. 718 , 111 So. 834 ; Reynolds v. State, 136 Miss. 329 , 101 So. 485. Since it is incumbent upon the state to prove the "unlawful" possession of the still, any witness having knowledge of the use of stills may testify as to the use of a particular still to negative its lawful use. Reynolds v. State, 136 Miss. 329 , 101 So. 485. It is not necessary, to sustain a conviction, that the evidence show exclusive possession of a still, because, where two or more persons are shown by the witnesses to have been in joint possession of a still, or its integral parts, each is guilty of the unlawful possession of it. According to the state's testimony, the defendant showed familiarity with the set-up of the still, which would not be reasonably expected of one who had no knowledge of the particular still and the officer had a right to testify with reference to what was done at that time as going to prove the unlawful use or at least to negative its lawful use.

Opinion of the Court

*273 Ethridge, P. J.,

delivered the opinion of the court.

The appellant, W. 0. Magee, was tried and convicted in the circuit court of Pike county on' an indictment *274 charging him with the unlawful possession of the integral parts of a still, and sentenced to serve a term of two years in the penitentiary, from which he prosecutes this appeal.

Appellant was arrested by a constable and a deputy sheriff of the county. Jnst prior to his arrest, appellant had picked up a shovel, a bucket, and another container. At the suggestion of either appellant or the deputy sheriff, the appellant assembled the still and lighted the fire under it, and made a small “run” of whisky.

It appears from the testimony of the deputy sheriff that, on the day preceding the arrest, he had discovered the still set up with the mash ready to run; waited a short while, then left, and returned the following morning and found that the liquor had been cooked, with the exception of a small portion in a. barrel, and the still had been dismantled. The deputy sheriff concealed himself, the appellant came up, and as stated above, assembled the still, and was then arrested. The appellant, at the time, stated that it was not his still, as he had sold it to one Martin. He declined, however, to state who operated it, saying to the deputy sheriff who had suggested that, if the appellant was not guilty he should not “take the rap,” he would not tell who operated the still. The deputy sheriff also testified that he could not assemble a still, and that at his suggestion, or that of Magee, the still was assembled by Magee who placed mud at some points to prevent the escape of steam, thus showing his familiarity with the assembling of stills.

The appellant testified that he assembled the still and lighted the fire under it at the request of the deputy sheriff, because he (appellant) was under arrest.

Thereafter, Magee and the deputy sheriff came to the home of one McDaniel, who inquired as to the matter, and Magee stated they had caught him in the act. McDaniel then stated to Magee that he should not “take the *275 rap” if he did not own the still, and should tell who the guilty party was. Magee stated that they had caught him, but they would have a time catching the other party.

The deputy sheriff also testified that there were two trails, or paths, from the still, one leading to |the premises of Magee, and the other to the premises of a man named Martin. It appears that Martin was arrested, but it does not appear what became of his case. The still was on land owned by the father of Magee, but he lived on the place also, and his explanation as to why he was at the scene of the still was that he was blazing a roadway for the hauling of logs.

The two main contentions relied upon are: (1) That the evidence was improperly admitted as to Magee’s assembling of the still, and his statements, because he was under arrest; and (2) that the evidence is insufficient to sustain a conviction.

In our opinion, there is nothing that makes the evidence inadmissible. There were no threats nor promise of reward. It is true that the deputy sheriff stated that if the still was lighted up perhaps the owner would come to it, and the fire was lighted, and the still assembled, for the purpose of inducing the third party to appear. This, however, does not render illegal the admission of testimony showing Magee’s acts and statements.

We are also of the opinion that the evidence is ample to sustain the conviction.

There are several assignments of error pertaining to instructions which we do not deem necessary to discuss.

There is no reversible error shown in the giving or refusing of these instructions, consequently the judgment of the court below will be affirmed.

Affirmed.

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