
    Mullins v. Commonwealth.
    (Decided October 19, 1926).
    Appeal from Pike Circuit Court.
    1. Intoxicating Liquors — Evidence Held Insufficient to Support Conviction for Manufacturing Liquor when Hailing to Show Defendant Furnished Materials. — In prosecution for manufacturing intoxieating liquor, it being :daim'efi tliat defendant fufrtisbed' materialk 'to be used by another for that purpose,- «conviction could not be sustained where evidence failed to show that materials were in fact so used. ■
    2. Intoxicating Liquors — Instruction Not «Based on Facts Proved by Testimony as to Defendant «Furnishing Material for Manufacture Held Erroneous. — Instruction to convict, if defendant' manufactured whiskey in «county within 12 months before finding of indictment, was erroneous because not based on facts proved by testimony to effect that defendant merely furnished materials to another from which whiskey was alleged to have been made.
    3. Criminal Law — Failure to Give Instructor!. 'Requring, «Corroboration of Testimony of Accomplice Held Error (Criminal Code of Practice, «section 241). — In prosecution for manufacturing liquor; wherein defendant was accused of furnishing materials out of which the whiskey was to be made by another person, held that failure to give instruction requiring «corroboration of testimony of such other person as accomplice was error, under «Criminal Code of Practice, section 241.
    F. M. BURKE and 'STATON & KEESEE for appellant.
    FRANK E. DAUGHERTY, Attorney General, and G. D. LITSEY, Assistant Attorney General, for appellee.
   Opinion op the Court by

Chief Justice Thomas

Reversing.

The grand jury of Pike county returned an indictment accusing appellant, Babe Mullins,’ of the offense, of -unlawfully manufacturing spirituous, vinous, malt and intoxicating liquor for other than legally permissible purposes as set forth in the statute, and upon his trial under a plea of not guilty he was convicted and fined $300.00 and confinement in the county jail for á period of 60 days. Plis motion for a new trial was overruled and he prosecutes-this- appeal, urging only two grounds for reversing the judgment, which are: (1) the insufficiency of the evidence to support the conviction, and (2), improper instructions by the court. There was no demurrer filed to the-indictment charging the defendant with the offense as a principal without naming the person whom the’evidence-was intended tó show was a joint principal in the alleged manufacture of the liquor. But, whether such failure to name' the one which the evh denee shows he only aided and' abetted, if he did so, is ■not presented and, therefore, not determined’ The chief witness for the Commonwealth was Melvin Elkins, whose entire testimony in chief was:

“Q. Do you not know the defendant Babe Mullins? A. Yes, sir. Q. In Pike county and within 12 months before the 13th day of October, 1925, do you know anything about the defendant manufacturing intoxicating whiskey or furnishing material to manufacture intoxicating whiskey? A. Yes, sir, he bought some apples for me to make some brandy and he also furnished me with some sugar. Q. How many apples did he buy for the purpose of making whiskey out of? A. Prom 85 to 100 bushels. Q. How much sugar did he furnish? A. 100 pounds. Q. Did you have any contract with him about the making of the whiskey? A. Well on the 1st day of October, 1924, my brother’s wife died and I told him that I would like to have the apples, but we could not agree on the price; brother wanted to sell nearly everything that he had only some of the furniture, and we couldn’t trade; he'asked me $2.00 a bushel and Babe said that he would buy them and that I could make some brandy; Alvin owed a store account down at Babe’s and he said that he would buy them and give Alvin credit on what he owed down there. ’ ’

The cross-examination developed that the apples of his brother referred to by him in his testimony in chief were obtained on the 7th day of October, 1924, and the indictment was not returned until the 13th day of October, 1925.- But, of course; the limitation would commence to run only from the time of the manufacturing of the liquor from the apples or the material furnished by del fendant with the intention that Elkins should use them, in such unlawful manufacture. It was also shown on cross-examination that in December, 1924, some prohibition officers, either federal or state, captured the still of Elkins and destroyed it and likewise arrested him. It was furthermore shown that at the time Elkins purchased the apples he owed defendant, who was a local merchant, a 'Considerable store account, and the same was true as to his brother, Alvin. He also testified that at the time he obtained the apples from his brother he purchased from him a hog, a cow and a pony, and the note that he executed to defendant was in part consideration of defendant’s furnishing the means to pay for those animals, and defendant was to credit the ■accounts in his store of both the prosecuting witness and his brother, Alvin, and that Melvin Elkins and defendant were to be partners in the brandy to be made from the apples by the former. If such an arrangement was true, which is denied by defendant, then there existed a partnership to engage in the unlawful manufacture, and if it hadf been done defendant would undoubtedly be a principal and not a mere aider and abetter. We, however, have searched this record in vain to find if it was anywhere shown that Melvin Elkins under the arrangement to which.he testified ever manufactured a drop of liquor with the purchased apples, or the 100 pounds of sugar, which he claimed was furnished him by defendant for that purpose. Some statements are made from which it might be surmised that he had manufactured some liquor up to the time his still was destroyed, but even that is only from inference and not from any direct statement by the witness, and nothing to show that, if done-, it was with the furnished material. It wrns proven by defendant and another witness, whom Melvin Elkins sent for the sugar, that it was stated to defendant that it was to be used for making apple butter and canning fruit, and that defendant never knew that it was intended to be'used for manufacturing liquor. Whether defendant would be guilty as an aider and abetter if he in good faith sold articles that he knew were to be used in the unlawful manufacture of liquor and which sale was done in the usual course of his business as a merchant and without being in any wise interested in the liquor to be manufactured, we need not determine. It is sufficient to say in this case that there was no substantial evidence from which the jury was authorized to find that Elkins, the alleged principal or partner of defendant, ever manufactured any liquor whatever from the materials furnished for that purpose according to the testimony of the witness, and which in any. event was necessary to be shown before defendant could be convicted.

Instruction No. (1) given by the court to the jury said:

“If the jury believe from the evidence in this case to the exclusion of a reasonable doubt that the defendant in this county and within 12' months before the finding of the indictment herein, rnanu-J faetured whiskey you will find him guilty and fix his punishment at a fine of not less than $100.00 nor more than $500.00 and imprison him in the county jail for a period of not less than 60 days nor more than six months, in your discretion. ’ ’

We think the more correct instruction should tell the jury, in substance, that if they believed beyond a reasonable doubt that Melvin Elkins unlawfully manufactured whiskey, etc., with' the material furnished by defendant and which was done by him with the agreement and understanding that he was to share in the liquor so manufactured, then they should find defendant guilty, etc. In- other words, the instruction should be based upon the facts which the testimony was directed to prove, and in this case the jury evidently could not find defendant guilty, although he furnished the material with the understanding that he would own a part of the manufactured article, unless the jury should further believe beyond a reasonable doubt that Elkins did actually manufacture liquor with the furnished articles.

On the other hand, if defendant was to have no interest in the liquor that Elkins was to manufacture but, notwithstanding, he aided and abetted in such manufacturing by assisting Elkins in so doing, he would be an aider and abetter only, though under the statute punishable as a principal. In such a case the facts should be submitted in the instruction. Nunnelley v. Commonwealth, 209 Ky. 191. We, therefore, conclude that instruction No. (1) was erroneous in either view of the case.

There was no instruction given by the court upon the corroboration of the testimony of Elkins, who was evidently an accomplice, as is required by section 241 of the Criminal Code of Practice. He was clearly an accomplice, whether as a joint principal with the defendant, or a sole principal whom the defendant aided and abetted, and in either view of the case-it was the duty of the court to give that instruction.

For the errors herein pointed out, the judgment is reversed, with directions to grant the new trial and for proceedings consistent herewith.  