
    No. 41
    BACKBELLA v. STATE
    No. 19528.
    Supreme Court
    On motion for leave to file petition in error
    Dock. Jan. 2, 1925.
    66.1. INTOXICATING LIQUORS — Is one tried and convicted on the charge of having and possessing a still, and later tried and convicted on a charge of manufacturing distilled liquor as a result of the same act, twice put in jeopardy for the same offense?
    Attorneys — N. K. Kennon, for Backbella; Herbert W. Mitchell, Pros. A tty., for State; both of St. Clairsville.
   In November, 1923, Backbella was convicted by the Mayor of St. Clairsville for having and possessing one complete still. In April, 1925, Backbella was indicted on the charge of “manufacturing distilled liquor, to-wit: whiskey.” The accused filed a plea to the indictment setting forth the constitutional guarantee under Section 10, Article 1, of the Constitution providing that no person shall twice be put in jeopardy for the same offense. The State’s demurrer to this plea was sustained and pursuant to a trial in the Belmont Common Pleas, Backbella was convicted.

It appears that the accused owned a large building having several apartments with a separate cellar under each apartment and that in the cellar of one of the apartments which was rented to one Ignatz a still in operation was found together with mash and other liquids and materials. Ignatz disappeared the day the still was discovered.

At the trial the state offered testimony concerning Backbella’s statements, during the trial in the Mayor’s court, admitting the possession of a still. A copper can was offered in evidence as a still — there being no accessories to the can necessary for distilling. Testimony was offered concerning the alcholic content of liquid which had not been analyzed.

It is contended that the court erred in sustaining the State’s demurrer because Backbella was in law and in fact twice put in jeopardy for the same offense. It is also contended that the trial court erred in admitting any evidence as to what occurred at the trial in the Mayor’s court and also in admitting all evidence and testimony above referred to on the ground of incompetency.  