Smith v. State

110 S.E. 752, 28 Ga. App. 125

• Court: Court of Appeals of Georgia
• Decided: January 18, 1922
• Docket: 13050
• Status: Published

Opinions

Broyles, C. J.

1. The charge complained of, as to what would constitute an attempt to manufacture liquor, is not, for any reason assigned, erroneous when considered in the light of the charge as a whole and the facts of the case.

2. If any person attempts to commit a crime, and in such attempt does any act toward the commission of such crime, but fails in the perpetration thereof, or is prevented or intercepted from executing the crime, he is guilty of an attempt to commit such offense. Penal Code (1910), § 1066. Under this ruling and the facts of the instant case, the evidence authorized the verdict finding the accused guilty of attempting to manufacture intoxicating liquor.

3. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

LuJce, J., concurs. Bloodworth, J., dissents.

The sheriff testified, that he went, with others, about dajdueak, to where they found a 50-gallon still which had no fire in it but had been in operation the night or day before and had not gotten cold, and they found around there, in boxes and barrels, about 800 or 1,000 gallons of “marby” which had fermented and “was in shape to be made up into beer; ” the mash had malt and sugar in it. Nobody else was there, and they concealed themselves, and in a short time Smith, the defendant, who lived about a quarter of a mile off, came up along a path from where he lived, carrying under one arm a turn of wood,' and under the other fruit jars, which he put into a case or cases, and laid the wood down at the still; and, while he was stooping -down, the sheriff crept up to within 15 steps of him and told him to halt, and Smith reached back to his hip-pocket for a pistol, and ran off, the sheriff shooting at him. “ Tliey use fruit jars around a still to put liquor in.” Other witnesses testified to the same effect. The defendant, in his statement at the trial, said that he went to the still because a negro who owed him some money promised to give him some liquor if he would go there, and that he ran off because the sheriff began shooting; that the still was run by another person (whose name he gave), and he (the defendant) had nothing to do with it; that he picked up the wood because it was in his wa3q and he had just set it down and set the fruit jars down and walked on three or four steps when the sheriff walked up.

Norman & Norman, for plaintiff in error. M. L. Felts, solicitor-general, contra.