Brock v. State

Gardner, J. The defendant was eonvieted of the illegal distillation of whisky, rum, and brandy. He filed a motion for a new trial on the general grounds, and thereafter added several special grounds. The motion was overruled, and he brings the case here for review. The indictment charged, omitting the formal parts, “that the defendant did . . distill, manufacture, and make 'alcoholic liquors and spirituous liquors, to wit, whisky, rum, and brandy.” The evidence for the State shows substantially that the officers had found a still which “was loaded,” and that when they went back “to it, they had run it off and we went down there four times, and the last time it was filled and we decided to wait until they came to it; ” that they did wait, and when they heard someone approaching, hid, and later went into the still site and found the defendant and his boy, and “they had pipes connecting up to the still, and he was putting cement or mud around them. They had just made a fire when the officers went on the premises of the distillery, and when they saw the officers the defendant ran.” On cross-examination an officer testified that they could “hear them knocking down there, and the woods was forty or fifty yards from the still, and we heard them breaking it;” and further testified that “the defendant was putting stuff around the pipes and this boy was squatting down helping them.” The jury returned a verdict fixing the punishment of the defendant for not more than one year and not less than one year, in the penitentiary. The evidence does not disclose that the defendant had distilled any “whisky, rum, and brandy.” Therefore, under the allegations of the indictment, a verdict for the completed offense of distilling whisky, rum, and brandy is not sustained by the evidence. The indictment did include an attempt to distill whisky, rum, and brandy. [131] An attempt to commit a crime ’s defined by the Code, § 27-2507, as follows: “If any person shall attempt to commit a crime, and in such attempt shall do any act toward the commission of such crime, but shall fail in the perpetration thereof, or shall be prevented or intercepted from executing the same, he shall, in cases where no punishment is otherwise provided for the punishment of such attempt, be punished as follows: . . The attempt to commit a crime punishable by imprisonment and labor in the penitentiary for not less than one year shall be punished as a misdemeanor.” The evidence is sufficient to sustain a verdict for an attempt to distill whisky, rum, and brandy. The record does not reveal whether the court sentenced the defendent to the term in the penitentiary- or imposed the misdemeanor sentence which the jury recommended. Indeed, the record does not reveal whether any sentence has been imposed upon the defendant. The only tenable contention of the defendant is that the court failed to submit the law defining an attempt and the punishment therefor as prescribed by the law for an attempt to distill whisky. We think that the court should have submitted the law defining an attempt to commit the alleged crime, as well as the prescribed punishment. If the court had done this, and the verdict had been for an attempt, as the evidence warranted, the punishment would have been as for a misdemeanor. In this view, the failure of the court to charge on an attempt to distill whisky as alleged in the bill of indictment, was harmless to the defendant, provided, of course, that he received a sentence as for a misdemeanor. Under the facts of this ease, the defendant should receive no more than a misdemeanor punishment. We see no necessity of granting a new trial, but the court should impose only a misdemeanor punishment for an attempt to commit the offense alleged in the indictment. The judgment of the court is affirmed with the direction that only a misdemeanor punishment be imposed on the defendant. Judgment affirmed, with direction. Broyles, O. J., and MacIntyre, J., concur.