Medlen v. State

Ethbidgei, J., delivered the opinion of the court. The appellant was indicted, tried, and convicted of having a still in his possession. The appeal is prosecuted [859] upon, the theory that the evidence is insufficient to sustain a conviction. The testimony for the state was by a deputy sheriff who arrested the appellant, and he testified that a Mr. Nabors and himself found a still on a Mr. Mitchell’s place, and that the defendant, ■ Huie Medlin, was there at the still. He further testified that he identified Medlin by a light shining’ upon his face when bending over at the still; that he thought there were two other parties present — he knew that there were other persons present at the still, and thought there were two of them, but that he could not state who they were, as it was night, and in trying to get into a position where he could identify these parties at the still that he made a noise, and that the parties ran away,;-that he went on up to Jim Hall’s house, not far from where the still was; that he had a search warrant to search Hall’s house, and that he found the defendant undressed, lying on a pile of cotton in a room to the house, that the appellant’s shoes, also his pants legs, showed he had been out in the dew; that he thought that Medlin was nervous; that he was undressed and was either asleep or pretended to be asleep when he went into the house; that he said but little at the time, but told the witness that he had just come in from the skating rink. He also testified that he found a complete still in Hall’s house, in the room where the appellant was. He testified further that the still down on the river side was in operation; that he destroyed it; and that it showed that it had been in operation. There was nothing to indicate that the still which was found in Hall’s house had been operated. At the conclusion of this evidence on the part of the state, a motion for a directed verdict was made, which was overruled, whereupon the defendant moved to require the state to- elect upon which still it would rely to sustain the charge, and the state chose to rely upon the one in the woods near the river. [860] The defendant’s testimony was to the effect that he was boarding at Hall’s house; had just come into town and obtained a position with the light plant at New Albany, and had worked there on Monday, the arrest having occurred Monday night; that he had not been there prior to Saturday, but that he had formerly boarded with Hall. He further testified that on the night of the arrest some person named by himi came by, and that they went to the picture show and from there to the skating rink, and had returned to the house about 1():3(>, and that he went to sleep. He denied having been at the still. He was supported, in his testimony by the person named by him, and also in part of his testimony by Mr. Hall and his wife, who testified that he came there' on Saturday, secured board and a position, returned to his home, about eight miles up the river, Sunday, and came back Sunday night,; that he worked at the light plant; that he ate supper at their home and left with the person named by the appellant, to go to the picture show; and that he returned about 10:30, and was asleep- when the deputy sheriff came to the place. Of course, the testimony of the deputy sheriff must be accepted as true for the purpose of this decision; he having testified to his identification of the appellant. But conceding all that the deputy sheriff testified to, we think the state failed to prove its case. There is nothing to show ownership or control of the- still by the appellant, nor did he do anything, so far as seen by the deputy sheriff, that would indicate that he was exercising any control over the still. The still was upon the land of another person, and the deputy sheriff’s testimony shows that other persons were present at' the still. There is nothing to show that the appellant had any connection with the ownership' of the still, or that he had anything* to do with placing it where it was located. This case is controlled by Powers v. State, 124 Miss. 425, 86 So. 862. See, also, Brazeale v. State, 133 Miss. [861] 171, 97 So. 525; Harness v. State, 130 Miss. 673, 97 So. 65; Anderson v. State, 132 Miss. 147, 96 So. 163. It follows that the motion to exclude the evidence should have been sustained, and a verdict directed for the appellant. The judgment of the lower court will therefore be reversed, and appellant discharged. Reversed, and appellant discharged.