#### Dodson v. State.

Opinion delivered November 16, 1925.

1. Intoxicating liquors — making mash — evidence.—In a prosecution of one as principal in making mash, evidence that defendant, pursuant to agreement, bought ingredients for others to make the mash, -without showing that he was present at the time the mash was made or that he actually participated in the making thereof, was insufficient to sustain a conviction.

2. Criminal law — conviction in felony. — One cannot be indicted and tried for a felony as a principal unless present, aiding and abetting in the crime.

Appeal from Clark Circuit Court; J. H. McCollum, Judge;

reversed.

Eardage é Wilson, for appellant.

E. W. Applegate, Attorney General, -and Darden Moose, Assistant, for appellee.

, Humphreys, J.

Appellant was indicted in tbe circuit court of Clark County under act 324 of the Acts of tbe General Assembly of 1921 -as a principal in making masb and possessing a still. Subsequently be was tried and convicted of making masb, and was adjudged to serve a term of one year in tbe State Penitentiary as punishment therefor. Appellant bad duly prosecuted an appeal to this court from tbe judgment of conviction, seeking a reversal thereof upon the ground that tbe evidence is insufficient to support tbe verdict and consequent judgment.

Tbe evidence tended to show that appellant was interested in making tbe masb by virtue of an agreement on bis part to furnish the materials out of which to make same to Jobn Ledbetter and Walter Dodson for a part of the whiskey.

John Ledbetter testified that be and Walter Dodson made such an agreement with appellant in Arlcadelphia, and that, pursuant to tbe agreement, appellant bought ingredients for them to make tbe mash; that they were in tbe act of making the third run when tbe officers arrested Walter land himself.

*878The still was operated about a mile and one-half from the home of appellant, and Ledbetter testified that it belonged to appellant.

There is no evidence whatever in the record tending to show that appellant was present at the time the mash wlas made or that he actually participated in making same.

By reference to the act under which appellant was indicted, it will be seen that it does not make one merely interested in making mash a principal as is the case in the act prohibiting the manufacture or sale of intoxicating liquors; hence it was unlawful to indict appellant as a principal. He should have been indicted and tried as an accessory to the crime of making mash. One cannot be indicted and tried for a felony as a principal unless present, aiding, and abetting in the crime- The evidence fails to show that appellant was present, aiding and abetting in making the mash. For this reason, the judgment must ¡be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.