The defendant is the owner of a 120-acre farm in Reynolds township, Montcalm county. He is 67 years of age, his wife 63, and his son Dale 23. These constitute his family, and they live upon and operate the farm. The dwelling house is a large two-story structure and has a cellar under a portion of it where is kept vegetables, canned fruits, roots, and the like. June 10, 1924, while the defendant was away from home, the dwelling house was *Page 608 searched by officers armed with a search warrant. Mrs. Burbank and a neighbor woman were present. The officers found in the cellar, among the cans of fruit, eleven quart bottles and one pint bottle of elderberry juice, which they seized and had analyzed by a State chemist, who found the juice to contain from .2 to 10.1 per cent. alcohol by volume.
The undisputed evidence shows that this juice was made by Mrs. Burbank in the fall of 1923. A neighbor, Mrs. Towers, was present and told her how to make what she termed elderberry vinegar. After it was made it was then put into a crock, placed in the cellarway, and in a couple of days placed in bottles by Mrs. Burbank and put in the cellar with the canned fruit, where it was all found by the officers, excepting one pint which Mrs. Burbank claimed she had used in the making of mince pies. It is claimed it was never used as a beverage and was only for cooking purposes. There is no proof that the defendant was present or at home when the juice was prepared, or that he ever saw it in the basement, countenanced its remaining there, or in fact ever knew of its existence.
On the day of the search by the officers the defendant was away from home and did not return until the following day. The officers, however, saw his son Dale and told him to tell his father to come to Stanton. Dale testified that he told his father a search of the house had been made, but was not sure he gave him the message about coming to Stanton. At any rate the defendant did not go to Stanton, but on the following day left home and remained away from June 11th until about the middle of the following October, when he returned and was subsequently arrested on this charge.
It is the claim of defendant that there was no evidence that he had anything to do with the making of the forbidden juice; that he was not there when *Page 609 it was made, and that he did not know it was in the house or ever had been until after it had been taken away by the searching officers, and that therefore the court should have granted the motion to direct a verdict of not guilty. The prosecution contends there was proof tending to show the defendant had knowledge of the fact that illicit liquor was being kept in the house from the fact that when the officers made the search on June 10th they left word with his son Dale to tell him that a search had been made at the home, and for him to come to Stanton the next day; that instead of coming to Stanton he left the State and remained away for more than three months; that such flight, under such circumstances, was competent evidence and ample proof of his guilty knowledge, and that the jury would be warranted in finding a verdict of guilty.
Admittedly this so termed flight of defendant was the only evidence in the case that the liquor in question was in his home with his knowledge or consent, or with his participation, or that he permitted or suffered the same to be in his home, which would be the test of his guilt or innocence under the circumstances in this case. While it is true that evidence of flight, along with the reason that may have prompted it, is a circumstance to be considered by the jury in connection with other evidence in the case, it is not of itself, standing alone, substantive evidence of guilt.
In the case of People v. Cismadija, 167 Mich. 210, the trial court instructed the jury as follows:
"The court instructs you that you have a right to consider such flight and subsequent concealment of respondent as evidence of his guilt."
This was erroneous instruction, and Justice BROOKE, speaking for this court, said: *Page 610
"We think it would be a dangerous rule which would permit the jury to consider flight as substantive evidence of guilt."
In the case at bar it may be said, too, that it is questionable if there was evidence of actual flight. While the son Dale admits he told his father of the search and seizure, he does not say that he told him he was wanted at Stanton. There was no warrant for the defendant at that time, and witnesses testified that he went away on a visit to his son in another State. In any event, this evidence, standing alone, is not sufficient to carry the case to the jury, and, as this was the only circumstance offered to show guilty knowledge of the defendant of the presence of liquor in the house, the jury should have been instructed to return a verdict of not guilty.
It will be unnecessary to discuss other assignments of error.
The verdict should be set aside and the trial court directed to discharge the defendant.
FELLOWS and WIEST, JJ., concurred with SNOW, J.