State v. Burton

111 So. 300, 145 Miss. 821, 1927 Miss. LEXIS 152

• Court: Mississippi Supreme Court
• Decided: February 7, 1927
• Docket: No. 26231.
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

In the circuit court of Quitman county, the grand jury returned an indictment against the appellee, Zeno Burton, charging him with attempting to manufacture in-intoxicating liquors, the indictment charging that he “did, then and there, willfully, unlawfully and feloniously and designedly endeavor, design and attempt to commit a certain offense prohibited by law, to-wit, to willfully, unlawfully and feloniously make, manufacture and distill spirituous, vinous, malted, fermented, alcoholic and intoxicating liquor; and he, the said Zeno Burton, in furtherance of his said willful and felonious intent and pur pose aforesaid and in furtherance of his said felonious attempt and design, aforesaid, did, then and there, willfully, unlawfully and feloniously collect and gather and bring to the distillery, there situated, wood and fuel, with the willful, unlawful and felonious purpose and intent of him, the said Zeno Burton, then and there, willfully and feloniously to use and burn the said wood and fuel to willfully and feloniously make, manufacture and distill vinous, malt, spirituous fermented, alcoholic and intoxicating liquor, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi.” To this indictment the appellee demurred on the ground, among others, that the indictment fails to allege that the acts complained of therein were and are adapted to effectuate a commission of the offense of manufacturing intoxicating liquors. The court below sustained the demurrer on this ground, and from the judgment entered, the state prosecuted this appeal.

In an indictment for an attempt to commit an offense it is essential that some overt act which is intrinsically adapted to effectuate the purpose should he alleged, but where the act alleged is manifestly adapted to effectuate the purpose it is unnecessary to charge that it is so adapted. The assembling of wood and fuel at a distillery for the purpose of using and burning the same in the manufacture of liquor in such distillery is an act so manifestly adapted to effectuate the purpose that it is not necessary to charge in an indictment for attempting to manufacture liquors that such act is so adapted. The demurrer should have been overruled.

Reversed mid remanded.