¶1 The court properly refused the motion for nonsuit. The defendant being found at the distillery while in operation, in overalls, and under the circumstances detailed in the evidence, was sufficient to take the case to the jury. In S. v. Killian, 178 N. C., 753, the defendant, seeing an officer searching for a still, took his gun and fired several times in the air. The officer proceeding to the still found no one there, and the still part removed, but there was fire in the furnace and other indications of recent use. The court held that this was sufficient *681 evidence to go to the jury that the defendant'was guilty of aiding and abetting. In the present case the jury might have found upon the evidence of the State, unrebutted, that the presence of the defendant there while the still was in operation, especially in overalls, justified the inference that he was guilty.
¶2 If the case had been submitted to the jury upon the whole evidence, it was for the jury to say how far they believed the evidence of the defendant. Eut we cannot sustain the instruction that “if the jury believed the evidence of the defendant .himself they should return a verdict of guilty against him, for that a person who goes to a distillery for the purpose of buying whiskey is guilty of aiding and abetting in the unlawful manufacture of the same.”
¶3 This case does not present the question whether the purchaser of a drink is guilty of aiding and abetting in the unlawful sale, for in this case the evidence is that the defendant did not buy a drink of whiskey. The unexecuted wish to buy is not aiding and abetting in a sale which did not take place. Much less is it aiding and abetting in the manufacture of the unsold whiskey. In this case, in the language of the great dramatist, it may be said of the defendant:
¶4 “His act clid not o’ertake Ms bad intent.” — Measure for Measure, Act V, Sc. I.
¶5 The attempt to do an illegal act is of course’ indictable, and under our statute under an indictment for an illegal act, the defendant can be convicted of an attempt to commit, or of a lesser degree of, such an offense. Eev., 3269. “Taking the defendant’s evidence to be true,” there was no attempt to do any illegal act, but merely an intent to buy a drink of whiskey. An intent uncoupled with any act is merely an operation of the mind, and cannot be indictable. S. v. Penny, 4 N. C., 130; S. v. Jordan, 75 N. C., 27, however criminal the act intended might be, even treason, without any overt act or attempt, unless,
¶6 “The unproportioned thought is given his act.” — Hamlet, Act I, Sc. 3.
¶7 An intent is usually an essential element in any crime. In some eases it must be proved. In others it is conclusively presumed from the act done. S. v. King, 86 N. C., 603. But intent alone, not coupled with any attempt or act toward putting the attempt into effect is, in no case, cognizable by the courts, however it may be in another tribunal. Matthew 5 :28.
¶8 Error.