CHARLESTON.

#### State *v.*John Barkoski.

Submitted April 1, 1924.

Decided April 15, 1924.

1. Intoxicating *Liquoks*— Verdict *for Accused not Directed, • When There is Evidence Warranting Jury in Finding Defendant Guilty.*

On the trial of a criminal ease, where there is evidence from which the jury would be warranted in finding beyond a reasonable doubt that the accused is guilty of the offense charged, it is not error to overrule a motion to exclude the evidence and direct a verdict for the defendant, (p. 266).

2. *Same*— Accused *May he Found Guilty of Unlawful Possession, Whether M\ash for Distillation or Fermentation.*

One charged with having in his possession “mash” in violation of section 37 of chapter 115, Acts 1921, for the purpose of making intoxicating liquors, may be found guilty of the offense created by said statute, whether the mixture or “mash” described therein was- for the purpose of distillation or fermentation, (p. 267).

Error to Circuit Court, Tucker County.

John Barkoski was convicted in a court of tbe justice of the! peace of tbe possession of mash for tbe purpose of making intoxicating liquors, and be brings error.

*Affirmed.*

*Charles D. Smith,*for plaintiff in error.

*E. T. England,*Attorney General, and *B. A. Blessing,*Assistant Attorney General, for the State.

Millee, Judge:

Upon appeal from a judgment of a justice of tbe peace, defendant was convicted in tbe circuit court of unlawfully having in bis possession a certain quantity of “masb”.

Tbe evidence of tbe officers, two members of tbe state department of public safety, who searched defendant’s residence, was that they found, behind tbe kitchen stove, a *266keg and a jar containing about ten or fifteen gallons of mash, composed of hominy or cracked corn, pieces of orange, a lemon, and a few dried peaches; and that the mixture was fermenting when they found it. One of the officers says that he tasted of the mixture, and that it contained yeast. They did not find evidence of a still or other apparatus which might he used for the purpose of manufacturing distilled liquors.

Defendant testified that the mixture was to be used as chicken feed; • that he had no other chicken feed that evening, and put twenty-five pounds of “hominy corn” in water for that purpose; and that the other ingredients were from the supper table. He said it was nothing but slop.

After the State had introduced its evidence and rested, the defendant moved the court to strike out the evidence and direct a verdict for him, on the ground that there was no evidence tending to show that the mash was for the purpose of making intoxicating liquors. The trial court ruled that it was for the jury to determine, from all the evidence introduced, whether or not the mash was for the purpose of manufacturing intoxicating liquors, since the testimony showed it was in a state of fermentation at the time it was found. We think the court was right in overruling defendant’s motion. From the nature of the mixture, the quantity, and the location in which it was found, the jury were qualified to determine whether it was to be used for a purpose which from its very nature it seemed to be most likely to be used, or for some kind of feed for domestic animals. The mixture must have been made for some purpose. When the motion to exclude the evidence was made, no attempt had been made to explain what use defendant had for the “mash” or mixture. A sample of the mixture was exhibited to the jury. The evidence is. that it contained yeast. It is not likely that yeast would have been added for any purpose other than to produce fermentation.

Objection was made to the State’s instruction, given, as follows: “The court instructs the jury that the law is that a man is taken to intend that which he does, or which is *267tbe natural consequences of bis own act, and therefore if they believe from tbe evidence beyond a reasonable doubt that John Barkoski made or bad in bis possession as charged in tbe warrant in this case a mixture of crushed cereals and other materials commonly known as ‘mash’ for tbe purpose of making intoxicating liquors, they should find him guilty. ’ ’

Tbe first objection assigned is that tbe instruction presents a mere abstract principle of law and is not predicated on tbe evidence in tbe case. Tbe first clause of the instruction may be abstract in form; but tbe jury were further told that if they believed tbe defendant bad in bis possession as charged in tbe warrant a mixture of crushed cereals and other materials commonly known as mash, for tbe purpose of making intoxicating liquors, they -should find him guilty. Tbe instruction follows tbe wording of tbe warrant and the statute under which it was drawn, section 37, chapter 32A, Barnes’ Code, 1923. Tbe State’s evidence was that tbe mixture found in defendant’s possession was fermenting, and was what is commonly denominated “mash”; sand with tbe exception of tbe particular ingredients composing tbe mash, and tbe place where it was found, the instruction covered tbe whole case as presented- by tbe evidence.

It is submitted that tbe instruction should have gone further and told tbe jury that tbe mash was for the purpose of making intoxicating liquors “with a moonshine still.” In *State*v. *Patachas,*96, W. Va., 203, decided at this term, we held that where it is shown that tbe possession of such mixture as is described in this case was for tbe purpose of making intoxicating liquors, it is not necessary to show that such liquors were to- be made by tbe use of a moonshine still.

Defendant asked for tbe following instruction, which tbe trial court rejected: “Tbe court instructs tbe jury that all substances, including that exhibited before you, which consists of crushed corn, prunes and peaches with tbe addition of water, and not for tbe purpose of distillation is wine, and before you can find tbe defendant guilty of any offense you *268must believe from the evidence beyond a reasonable doubt one or the other of the following existed.

“1. That the beverage exhibited was for the purpose of distillation.

“2. That the defendant did sell, keep, store, offer or expose for sale, solicit or receive orders for the substance exhibited, and if you do not so believe then you should find the defendant not guilty.”

The first proposition advanced by this instruction is fully answered by the opinion in the case of *State*v. *Patachos,*cited above. As to the second proposition, defendant was not charged with the offense created by section 3 of chapter 32A of the Code, that of keeping, storing, offering or exposing for sale intoxicating liquors, but for the offense of having in his possession “mash,” for the purpose of mating intoxicating liquors, as defined by section 37 of said chapter.

The judgment will be affirmed.

*Affirmed.*