State v. Swink

• Decision Date: 15 December 1909
• Citation: 66 S.E. 448,151 N.C. 726
• Parties: STATE. v. SWINK.
• Court: North Carolina Supreme Court

(151 N.C. 726)

66 S.E. 448

STATE.

v.SWINK.

Supreme Court of North Carolina.

Dec. 15, 1909.

1. Indictment and Information (§ 61^*)— Averring Matters of Judicial Notice-General Elections.

Courts will take judicial notice of the holding of a general election and its result, so that, in a prosecution for violating the state prohibition law, the indictment need not allege the holding of the election, and that it resulted in favor of prohibition.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 183; Dec. Dig. § 61.*]

2. Criminal Law (§ 304*)—Judicial Notice —Executive Proclamations.

The Supreme Court will take judicial notice of the Governor's proclamation announcing the result of a general election.

[Ed. Note.—For other cases, see Criminal, Law, Cent. Dig. § 706; Dec. Dig. § 304.*] 8. Intoxicating Liquors (§ 196*)—Extent of Punishment—Conflict Between Statutes.

In a prosecution for selling liquor in violation of the prohibition law (Pub. Laws, Extra Sess. 1908, p. 83, c. 71), which expressly repealed all laws conflicting therewith, a provision of the charter of the city in which the offense was committed, imposing a punishment for selling liquor without a license, which was different from that imposed for violation of the statute, would not limit or control the punishment imposed.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 215; Dec. Dig. § 196.*]

4. Criminal Law (§ 658*) — Trial (§ 29*) — Power to Punish — Contempt in Court's Presence—Committing Witness for Perjury.

While the trial court may order a witness into immediate custody for contempt committed in its presence, it cannot, either in a criminal or civil action, commit a witness to immediate custody in the jury's presence for perjury; such action invading the rights of the party offering the witness, and being an intimation of the judge's opinion.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1534; Dec. Dig. § 658;* Trial, Cent. Dig. § 82; Dec Dig. § 29.*]

Appeal from Superior Court, Buncombe County; Ward, Judge.

Will Swink was convicted of selling intoxicating liquor in violation of law, and he appeals. Reversed, and new trial granted.

W. P. Brown and Jones & Williams, for appellant.

The Attorney General and Geo. L. Jones, for the State.

BROWN, J. 1. The motion in arrest of judgment, because the bill fails to charge that the election provided for by chapter 71, p. 83. Pub. Laws, Extra Sess. 1908, had been held and resulted in favor of prohibition, cannot be sustained. In support of his position the learned counsel for the defendant relies on State v. Chambers, 93 N. C. 600. We think, however, there is a distinction. In that case the statute provided for an election to be held in the town of Morganton. It was a local election, confined to a single town in the state. The election of 1908 was a general election covering the entire state, and the entire state was to be governed by its result. No authority can be found which holds that an election of this general character need be alleged in the bill. In the text of Cyc. (volume 16, p. 901) it is said: "Since judicial knowledge of official duties implies knowledge of the methods by which it is legally obtained, state courts judicially know the date of holding a general election or a special election provided for by a general law." And in Wigmore (section 2577) it is said: "All courts take notice, in one or another aspect, of facts concerning public elections." See, also. Kokes v. State, 55 Neb. 691, 76 N. W. 467. Moreover, the Act of 1908 in express terms declares that "the proclamation by the Governor shall have the effect to determine the result of said election." All authorities hold that the courts take judicial notice of the proclamations of the executive. Cyc. 16, 904; Wigmore, § 2577.

2. The position that the punishment is limited to a fine of $50 or imprisonment for 30 days, as provided in the charter of the city of Asheville, is untenable. The city charter has reference only to a sale of liquor without license. The defendant is not indicted for such a sale, but simply for the sale of liquor contrary to the state prohibition law. To limit the punishment for a violation of the law to a fine of $50 or imprisonment for 30 days would be in direct conflict with the provisions of the prohibition act, and the act declares that all laws in conflict with it are expressly repealed.

3. It appears from the record that, during the progress of the trial, in the presence of the jury, and while Forest Phillips was on the stand as a witness for defendant, "the demeanor of the said Forest Phillips was bad and almost contemptuous, and, it appearing to the court that some proceedings ought to be taken...