* Headnotes 1. Intoxicating Liquor, 33 C.J., Section 447; 2. Intoxicating Liquor, 33 C.J., Section 494 (1926 Anno; 3. Intoxicating Liquor, 33 C.J., Section 502. Appellant, Mitchell, was indicted and convicted of having the felonious and unlawful possession of a still alleged to be used by him in the unlawful and felonious manufacture of intoxicating liquor. He demurred to the indictment on the ground, among others, that it did not negative the exceptions contained in the statute in defining the offense. The demurrer was overruled, and defendant was placed upon trial and convicted and sentenced to one year in the state penitentiary.
The prosecution was brought about by the discovery under a search warrant of the alleged moonshine still which consisted of a gasoline drum and certain piping, etc., which put together could be used in distilling intoxicating liquor. The original search warrant could not be found, and a copy thereof was identified by the officers issuing and serving it, to which the defendant objected.
The affidavit for a search warrant alleged that affiant states on oath that he has reason to believe and does believe that intoxicating liquors are being manufactured, possessed, and sold, or offered for sale, or given away, in violation of law, in the dwelling house, outhouses, on the premises, in the automobiles, or other vehicles used or occupied by and on the person of Sam Downs Mitchell, about eleven or twelve miles northwest of Kosciusko, in the said county and state.
When the officers went to the residence of the defendant to search, they found no one at home and went down *Page 114 into the field and there found a boy, the son of Sam Mitchell, and delivered to him a copy of the warrant, and returned to the house and searched the house and under the house occupied by Sam Mitchell, and under the house found a drum so fixed as to be capable of having pipes attached to it. Around the drum was fresh dirt which would conceal it from the outside, and the drum was only found by raising up the flooring in the room occupied by Mitchell and his wife, which planks were not nailed down, but could be raised up inside the house. The piping was found inside the house. The drum had smoke and soot on it and appeared to have been recently used and contained a smell usually found in vessels where moonshine liquor had been manufactured. Both defendant and his wife testified. The defendant admitted having seen the drum under the house some time prior to the search, claiming he was chasing a chicken and it ran under the house, and he then discovered the drum, but testified he had never used it. He further testified that another man lived in the house with him and worked for wages for a man near by. Mitchell's wife testified that she had never seen this drum until it was found by the officers; that her husband had not used it in the manufacture of liquor; and that he had never told her about discovering it on the occasion he testified about. The third party who lived at the same house also testified for the defendant, testifying that he stayed at the house at night but worked for another man in the daytime, and that he had never seen or known of the defendant's manufacturing whisky, and had never seen or known of said drum and pipes. He further testified he had never used same and had never made intoxicating liquors, and that said articles did not belong to him. It further appeared without dispute that defendant had lived at the place for more than five months at the time of the search.
It is further insisted that the court erred in not sustaining the demurrer to the indictment, and the appellant relies upon the cases of State v. Speaks, 132 Miss. 159, *Page 115 96 So. 176, and Dawsey v. State (Miss.), 100 So. 526. In each of those cases it was held that the exception and statute must be negatived in the indictment or affidavit; that under the statute it was not a crime to have possession of a still for the purpose of distilling water or turpentine; and that it was necessary for the indictment to negative the possession for these purposes. In the present case, the indictment alleged:
"The said still being then and there owned, controlled and knowingly possessed by the said Sam Mitchell for use in the unlawful and felonious manufacture of intoxicating liquor, contrary to the form of the statute in such cases made and provided," etc.
We think this indictment negatives the possession for a lawful purpose by alleging distinctly that it was owned, possessed, and controlled by the said Sam Mitchell for use in the unlawful and felonious manufacture of intoxicating liquor. If the still was possessed for this purpose, it would be a criminal possession and a felonious possession, regardless of the fact that it might also be used on occasions for a lawful purpose. We think there was no error in overruling the demurrer.
It was next contended that the court erred in admitting the testimony of the officers because the evidence of the crime was discovered by a search warrant, and the defendant demanded the production of the affidavit and search warrant before the evidence should be admitted, so that the defendant might be fully advised whether the affidavit and warrant were legal, and appellant relies upon Cuevas v. City of Gulfport, 134 Miss. 644, 99 So. 503, and Wells v. State, 135 Miss. 764, 100 So. 674.
We think the evidence showed sufficiently the loss of the originals and the copies were admissible. The affidavit and warrant as shown by the copies were sufficient to constitute a lawful search, and therefore the evidence obtained by the search was admissible.
It is next insisted that the evidence is insufficient to sustain a conviction, and that the evidence does not sufficiently *Page 116 show that the defendant placed the still outfit where it was found or had anything to do with it, or that he had used it for any unlawful purpose, but that, on the contrary, his testimony showed that he did not use the drum and pipes and did not place them under the house where they were found, that his testimony was uncontradicted, and must be taken as true.
The evidence showed that the defendant had lived at the place for five months or more. It further showed that the earth around the drum under the house was freshly placed there. It further showed that the still had been recently used in the manufacture of intoxicating liquors, and that the drum could only be located and taken out from the place where it was found by being carried through the floor or by removing the floor in the room of the defendant. It being shown that the defendant had knowledge of its presence, that the dirt around it was fresh, and that smoke and soot on the drum was fresh, and that the drum had been recently used, the fact that the pipes were inside the house, coupled with the evidence of the wife, and the other party who lived there that they did not use the still or know of its presence, is sufficient to connect the defendant with its operation.
We think there is no merit in the other assignments of error, and the judgment will be affirmed.
Affirmed.