An information was filed against appellant, Derrell Philyaw, charging that he did “wilfully and feloniously have and keep in his possession a certain still and still worm to he used and operated as a distillery for the purpose of making and manufacturing alcoholic, vinous, malt, spirituous and fermented liquors without registering the same with the proper United States Officials as is required by law.”
Appellant was convicted by a jury and sentenced to 3 years in the penitentiary; hence this appeal.
The statute under which appellant was charged is Ark. Stats., § 48-936.1 which reads:
“It shall be unlawful for any person to own, have in possession, or knowingly transport an illicit still or still worm for the unlawful manufacture of intoxicating liquors, and it shall be unlawful for any person, or persons, firms or corporations, to engage in and manufacture spirituous liquors without first having license to manufacture intoxicating liquors from the State of Arkansas and the United States of America.”
We call attention to the fact the above statute anticipates three separate law violations, viz: (a) The possession of an illicit still; (b) The possession of a still worm (both for the unlawful manufacture of intoxicating liquors), and; (c) The manufacture of spirituous liquors without a license from the State of Arkansas and the United States.
The proof in this case shows that appellant violated division (b) of the above statute in that he possessed a still worm for manufacturing spirituous liquors.
Appellant earnestly insists that the case should be reversed, stressing three principal grounds.
One. Appellant says lie was “entitled to know the nature of the charge in order that he might [may] prepare his defense.” He points ont that the information charged him with possessing a still and still worm without registering the same with the proper United States Officials. We cannot believe appellant was in any way misled. The trial court, by instructions 4, 5, and 7, made it plain to appellant that he could be found guilty for possessing only a still toorm for the purpose of manufacturing spirituous liquors. Ark. Stats., § 43-1012, provides that:
“No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.”
In Ragsdale v. State, 222 Ark. 499, 262 S. W. 2d 91, the above quoted statute was cited and the information was sustained, the court stating that ‘ ‘ The evidence produced no element of surprise.” Likewise we think appellant was in no way surprised by the State’s testimony in this case. If appellant was in any way confused by the wording of the information he could have asked for a bill of particulars, but having failed to do so he cannot now complain.
There is no merit in appellant’s contention that the still [found in his possession] was not set up or complete and therefore not subject to registration with the Federal Government. It was not necessary under the statute or the court’s instructions to prove that appellant even had a still.
Two. Appellant complains that the trial court asked the witness and himself improper questions. The record fails to disclose any objections by appellant to any such questions.
Three. Appellant’s objection to the court’s instruction No. 4 on the ground that it failed to describe an illicit still in accordance with the Federal statute, indicates no reversible error. As indicated previously, it was immaterial what kind of a still appellant possessed or whether lie possessed a still at all. The evidence was sufficient to sustain a conviction of possessing a still worm for making spirituous liquors.
We have considered other objections raised in the motion for a new trial, but find in them no reversible error.
Affirmed.
HaReis, C. J., George Rose Smith and RoumsoN, JJ., dissent.