#### THE STATE *vs.*JOHN SUMMEY.

A person who loases his 3til! house and still, knowing that the lessee takes them for the purpose of distilling spirits from corn, which purpose, is accomplished by the lessee, is not guilty of a violation of the act forbidding the distillation of spirits from corn, if he insnot any interest in the liquor made. ■ -

Liquor obtained by running the beer once through the still, is “ *spirituous liquor "*within the act.

•The Judge is required to put the -caso to the jury in such .a way as to make it appear by the record, what facts the jury find, and what is Sis opinion as to the law.

The oases of Gaither *vs.*I'erebje, Winston 310 aed State *vs.*Norton, Id., S03, cited and approved-.

This was an iudictment tried before Rbadk, J., at Pall -Term, 1864, of the Superior Court of Transylvania county..

*109The indictment .charged John Summey, William Sum-mey, and Samuel Johnston with distilling ■ spirituous liquor from corn. Johnston was not taken. The two #th-' er defendants appeared and pleaded, not guilty.

On the trial, one witness swore that John Summey admitted to him, that'one Johnston who lived in South Carolina, had corn which he wished to distill, and the defendant leased to him his still house and still' in Transylvania county, for tlie purpose of-distilling his grain; but he, the defendant, had nothing to' do with the spirits or profits ; and that the defendant further admitted, that some of the corn had been distilled ;• or1 that was asserted-in the defendant’s presence, and he did not deny it! Another witness for the State, swore that he went to the still and found them distilling ; that, they had not doubled : they had not run the. beef' twice through the still, but only once ; and the liquor so produced is called singlings. It is usual tó run the singlings through the still a second time to make it stronger.

There was no other evidence.

It was admitted on both sides, that the witnesses were entitled to credit. It was contended by the defendant, John, that he was not guilty, because he did not actually participate in the stilling ; and because there was n© distillation unless they .doubled.

The Court'charged the jury, that if they believed the evidence, the defendant was guilty.

The jury found' the defendant, William Summey, not guilty, and the defendant, John Summey, guilty — and from the judgment against him, John Summey appealed.

Attorney General for the State.

*W. H. Bailey*for defendant.

*110PeaRSon, C. J.

Tbe counsel for tbe defendant on tbe trial below put tbe case On two grounds, both of wbicb were presented by tbe evidence : * - . "

1st. That be was not guilty, *“*because be did not a«-tually participate in tbe stilling.”

2d. Because “ there was no distillation.”

His Honor dees not iespond to either .position, directly, but charged, in general terms, that *“*if tbe jury' believed tbe evidence, tbe defendant was guilty.”

From thismode of putting the case to the jury there.is ho telling whether they found tbe defendant guilty upon the testimony of tbe first witness or of the - second, or of both; for, although both, witnesses are admitted to be entitled to credit, it may be that the jury acted on the testimony of the first, not being able to find, from the testimony of the second witness,, that the defendant was present, pr, if present, that he had anything to do with the stilling, which is a work which may not require more than one hand. If this witness referred to- the *three*persons against whom the bill was found, or to the *two*who were on trial, and the jury found on Ins testimony, it cannot be understood' why they acquitted *William, Summey.*Or it .may be that the jury .acted- on the testimony of the •second witness, supposing, the first might be mistaken in regard to the conversation which he had heard. In this state of the case it follows that the defendant is entitled to a *venire de novo,*if the point made upon the -testimony of *either.oí*the witnesses ought to have been ruled in his favor. For we are obliged to. suppose tliat his Honor overruled both positions, or impute to him a want of candor, by which -the jury were left in the dark, as to hi* opinion on the questions of law, and this Court would not he.able to review it. -

*111When counsel make a point wbicli arises on the evidence, and expressly, or by implication as in this case, requests the opinion of the Judge, and I o declines to give it, or Tails to do so by a general charge like the one under consideration, it is error ; notwithstanding there is another view of the case arising, on other parts of the evidence, which is against the party. The statute requires a Judge to *“*state to the Jury in a full and correct manner, the evidence given in the. case, and to *declara*and *explain*the law; arising thereon.'’ He is not required to recapitulate the evidence in detail — but he *is*required to put the case to the jury in such a way, as to make it appear by the record, what facts the jury find, and what,is his opinion as to the law ; so that his opinion may be reviewed by this Court.

A general charge is only allowable in special cases, when these purposes are otherwise fully answered. Gaither ws. Ferebee, 1 Winston, 310, State *vs.*Norton, Id., 303. These cases dispose of the subject. They were'decided at June.Term last, and we presume bis Honor had not read them.

This Court is of opinion,. that in order to justify a conviction under the statute, it must be proved that the party either distilled graiu himself, or *procured*it to be done ; and that the fact that#tlic defendant “ leased or hired ” his still-house and still'to'one who had corn, for the purpose of distilling the corn, and that it was in fact distilled by him at the house and in the still, *the defendant having no interest in the*spirits, does not make him guilty of a violation of the statute.

Upon the second point the Court is of opinion that to run beer, made of corn, through the .process of distillation once, is a violation of the statute ; for- spirituous *112liquor is thereby distilled out of corn ; and, although, the liquor is improved by running it through twice,, that is not necessary in order to mate it *“*spirituous liquor,” •within the meaning of the statute.

This decision must be certified to the Superior Court.