DECIDED OCTOBER 25, 1941.
Making intoxicating liquor; from Floyd superior court — Judge Byars presiding. August 20, 1941.
J. L. Wallace, Mrs. Charles Camp, for plaintiff in error.
Henderson Lanham, solicitor-general, contra.
1. Mere presence of the defendant at a whisky still in operation by others is not alone sufficient to sustain a conviction of manufacturing whisky. In addition thereto there must be shown some act or acts essential to the illegal manufacture of the whisky. Brown v. State, 34 Ga. App. 452 (2) ( 129 S.E. 664); Orr v. State, 62 Ga. App. 774 ( 9 S.E.2d 917); Burchfield v. State, 40 Ga. App. 506 ( 150 S.E. 459); Mickens v. State, 27 Ga. App. 581 ( 110 S.E. 623).
2. In the absence of legal evidence setting up the corpus delicti as to this defendant, connecting him with the offense of manufacturing whisky at a still being operated by others, not on his premises, but where he was merely present, allegedly incriminating "admissions" by him seeking to learn who "reported" him and requesting the officer to "speak a good word for him" (to the court) were insufficient to support a conviction for illegally manufacturing whisky.
3. There was no legal evidence to sustain the conviction. It becomes unnecessary to pass on the remaining assignments of error.
DECIDED OCTOBER 25, 1941.
The officers arrested the defendant at a whisky still being operated at the time by others. The still was not located on the defendant's premises and he was doing no act in aid of the operations. He had a tow sack, which was described as an "orange" sack. It was not shown to have had any connection with the matters or things used in the making of the whisky. While the defendant had on overalls, there were no identifying marks thereon to connect him with the operations of the still. We quote from the State's evidence: "He asked us who reported him and we told him we couldn't give him the information, and he said if we would tell him who reported him, if we could reveal it, he said he would make a trade, and would swap us two for one if we would tell him who reported him. . . He was talking about different things, and he mentioned to us that if we told him who turned him up he would swap two for one with us. He told us that he would swap two for one if we would tell him who turned him up. . . `Looks like you are making good whisky' [the officer stated to the defendant], and he told me that there was some over there if I wanted any. . . He asked me to speak a good word for him. He told me to speak a good word for him. . . He said he worked for us in the campaign and he wanted me to speak a good word for him. I suppose he wanted me to speak a good word to the court."
The headnotes require no elaboration.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.