#### STATE v. T. H. BROWN AND W. A. L. SMITH.

(Filed 3 May, 1922.)

1. Intoxicating Liquor — Spirituous Liquor — Evidence—Verdict—Motions —Nonsuit—Trials.

Held,, the evidence in this case of the close relation and conduct of the two defendants indicted for violating the prohibition law, the location of the still on the land of B. and with pathway to his house, his furnishing ■ the wood for the still, found by the officers fired and surrounded with material for the distillation of liquor, and the acts and conduct of S. in relationship to the unlawful act, is upon defendants’ motion to nonsuit, sufficient to sustain a verdict of conviction against B. of “guilty of permitting a distillery to be erected on his premises and manufacturing liquor,” and against S., of “guilty of manufacturing liquor.”

3. Appeal and Error — Rules of Court — Dismissal.

A case on appeal will be dismissed in the Supreme Court when the appellant has not conformed to the rule requiring that it be docketed in a certain time before the call of the district, at the first term of the Supreme Court beginning after the trial, and has failed to apply for a certiorari on good cause shown.

*790Appeal by defendants from McElroy, J., at June Term, 1921, of MECKLENBURG.

Tbe defendants were indicted for violation of tbe prohibition law.

Tbe defendants excepted for tbe refusal to nonsuit. Tbe evidence for tbe State, condensed, tends to sbow tbe following facts: Tbat about 10 April, 1921, tbe deputy sheriff and four officers named, in consequence of information received, went out to a farm owned by tbe mother of Brown, but under bis control and management, and found there a 50-gallon still, two large vats of still beer, and all kinds of barrels, slop vats, funnels, buckets, and everything used in connection with making whiskey. Tbe still was a good one, built on a brick furnace and cased up with brick. They also found a lot of provisions there, such as bam, cheese, coffee, light-bread, and a great number of empty sugar sacks. They found tbe vats full of beer tbat was working, about 2,000 or 3,000 gallons. This beer was ready for tbe still. The still was hot and tbe fire was burning beneath it. Tbe officers put out tbe fire by pulling tbe wood out from under tbe furnace. Tbe still was about 50 yards from tbe edge of a meadow, where tbe defendant Brown was in the habit of cutting bay. At tbat date, 10 April, tbe bay bad not been cut, but' nearby was an old stack place, where tbe bay tbe year before bad been stacked. Across this meadow and about 100 yards from tbe still was an old bouse place. Tbe old bouse bad been torn down and tbe timbers sawed into wood, and there was a large pile of tbat wood down at tbe still. Tbe officers carried some of tbe wood found at tbe still up to tbe old bouse place and compared with tbe wood lying there, and found tbat it was tbe same and sawed tbe same length. The chimney of this old bouse bad also been torn down and tbe brick used at tbe still appeared to be tbe same as that remaining in tbe old chimney at tbe bouse.

There was a road to tbe old bouse and a well-beaten path led therefrom to tbe still. Tbe road stopped at tbe old bouse place and tbe path ran from tbat place to tbe still and stopped there. Tbe officers 'found tbe still by following tbat path. They found a lantern setting on tbe wood pile at tbe old bouse place. It was black with smoke, bad beer slops on it, and bad evidently been used at tbe still. Tbe wood at tbe still, when compared with tbat at the bouse place, was found to be tbe same size and length, and was sawed in tbe same way. Deputy Sheriff Eesterman went back there a few days later and found tbe same things there, except tbat they bad been moving tbe vats out. Most of them bad been moved away. He testified further tbat be saw tbe defendant Dee Smith drive up in a Ford truck just as be was leaving. “He never said anything to me. He saw us and turned off through an old field. I saw two men in the truck with him, but I don't know who they were. He sorter drove through tbe old field and stopped. I don’t know what bad become of tbe *791lumber and stuff that had been moved away, but it had been moved. Part of the furnace had been carried out into the old field.”

The defendant Erown had had this house torn down about two or three weeks before the still was discovered, and part of the timber sawed up and left there. Two days before the still was discovered, three negro boys saw the defendants Smith and Brown go down to the still. .They drove their automobile up to the old house place, then got out of the car, came down the road, turned up the edge of the thicket and went into the still. They stayed there about 5 or 10 minutes, then left. The boys, noticing this, after they left, followed them, found a path, then took the path and went to the still.

Both defendants denied that they knew anything of this still. They admitted that they were at the old house place and had walked down in the meadow at the time that the three boys saw them, but claimed to have gone there to look after the hay of last year’s cutting. The defendant Brown testified that his hay yard was about 135 yards from the still, and said: “When I got out of my automobile that day I did not go in the direction of the still place at all; I went in the other direction. . . . We did not go into the thicket at all, and I did not see any path leading to the still until after it was captured.” He admitted he had hauled the lumber and some of the slops from the still after the still was cut up, and that he gave his codefendant Smith some of the slops.

The defendant Smith admitted that he got about a quart of liquor which was made at this place, and said: “Some boys found some liquor down there on Tuesday evening and brought it to my house. They took the most of it, at least some one did. I do not know who got the balance. I got less than a quart.”

There was some evidence introduced by the defendant in explanation or contradiction of some of the above testimony, but the jury did not give it credence, and found the defendant Brown “guilty of permitting a distillery to be erected on his premises and manufacturing liquor,” and Smith they found guilty of manufacturing.

Judgment and appeal.

Attorney-General Manning ancl Assistant Attorney-General Nash for the State.

F. M. Redd and D. B. Smith for defendants.

Clark, C. J.

On this motion for nonsuit, the evidence of the State must be taken as true with the most favorable inferences that the jury was authorized to draw from it. As to the defendant Brown, the evidence was sufficient to be submitted to the jury both on the charge of knowingly permitting land in his possession and under his control to be used as a place for the manufacture of liquor; and also for manu-*792factoring it. He admits tbat be was in and about tbis meadow frequently a short time before tbe still was discovered-, tbat be directed tbe tearing down of tbe bouse and tbe sawing up of some of its timbers on its site, and was bimself in and about tbe place while tbis work was going on. Tbe State’s evidence established clearly tbat there was a well-beaten path from .this bouse to tbe still; tbat tbe fire wood used at tbe still came from tbe pile admittedly sawed under direction of tbe defendant; tbat setting on tbis pile of wood at tbe bouse was a lantern, smoked and beer-besprinkled, which bore traces of having been used at tbe still; and tbat tbe brick used in tbe furnace came from tbe chimney of tbis old bouse.

In S. v. Jones, 175 N. C., 709, Walker, J., for tbe Court, held tbat one was guilty of manufacturing if be furnished tbe still, or tbe corn, or tbe coal and wood to make tbe fire, or any other material used in tbe manufacture of liquor. A bill similar to tbe one in tbis case was passed upon and sustained by tbe Court at last term by Hoke, J., in S. v. Mundy, 182 N. C., 910.

Tbe defendant Smith,' according to tbe evidence, was identified with Brown in tbe whole affair. He was with him on nearly every occasion where Brown is shown to have appeared at or near tbe still. Smith shared not only in tbe beer left at tbe still, but in tbe whiskey which bad been made there, and was seen by two of tbe officers under suspicious circumstances, apparently going there to haul off tbe lumber after tbe still was cut up.

Tbe evidence was sufficient to submit to tbe jury, and would have authorized tbe inference tbat tbe parties were at tbe still tbat morning-before day preparing for tbe manufacture of whiskey, and made their escape before the officers got there, one of them carrying tbe lantern to tbe old bouse place, but blowing it out and setting it upon a pile of wood after they bad reached tbe open. Upon tbe evidence, taken as tbe law requires on a motion of tbis kind, in its most favorable aspect and with tbe most favorable inferences which tbe jury can draw therefrom in favor of tbe State, we could not say tbat there was no evidence fit to be submitted to tbe jury against tbe defendant Smith, although tbe evidence is not as full and complete against him as against bis codefendant. They were evidently associated, and there was evidence to convict Smith of aiding and abetting and hence guilty of tbe charge of manufacturing, C. S., 3409, as found by tbe jury.

We have stated and discussed tbis ease because it was argued before us, which would not have been done if we bad been advertent to tbe fact tbat tbis ease was tried at June Term, 1921; tbat tbe record was not docketed, nor any certiorari applied for at tbe fall term, and a certiorari would not have issued unless on good cause shown. Indeed, tbe appeal bond below was not filed until 11 March, 1922, and tbe appeal was not docketed here until 6 April, 1922.

*793Ruder tbe always uniform ruling of tbe Court, tbe appeal should have been dismissed. This has been often reiterated and several cases have been dismissed at this term accordingly. Tbe reason of tbe rule and tbe necessity for its uniform observance was restated as late as last week in S. v. Barksdale, ante, 785. Tbe Court will make no discrimination between litigants in tbe requirements which we have found necessary .and have always adhered to.

Appeal dismissed.