State v. Beam, (No. 469.)

• Citation: 115 S.E. 176
• Case Date: December 06, 1922
• Court: United States State Supreme Court of North Carolina

115 S.E. 176

STATE.
v.
BEAM.

(No. 469.)

Supreme Court of North Carolina.

Dec. 6, 1922.

[115 S.E. 177]

Clark, C. J., dissenting.

Appeal from Superior Court, Cleveland County; McElroy, Judge.

M. L. Beam was convicted of having in possession spirituous liquors for the purpose of sale, and of receiving more than one quart thereof within 15 days' time, and he appeals. New trial.

The defendant was convicted, at March term, 1922, of Cleveland superior court, of having in his possession spirituous liquors for the purpose of sale, and of receiving more than one quart thereof within 15 days' time, and from the judgment upon such conviction appealed to this court.

Defendant's exceptions 2 and 7 were taken to the judge's refusal of a judgment as of nonsuit against the state at the conclusion of its testimony, and again at the conclusion of all the testimony. The state's evidence, if believed, showed that in consequence of information received by them, Officers E. W. Dixon, J. F. Dixon, and M. N. Moore, after obtaining a proper search warrant, went out on Thursday before Christmas, 1921 (December 22d), to Beam's residence, about one mile and a half from Grover, in Cleveland county. The search was made about 3 p. m. of that day. As the officers drove slowly along in front of defendant's house, they noticed three men coining out of a little shop building, and one of those men was putting something in each hip pocket as he came out. This man went out behind the house to the railroad, going in the direction of Kings Mountain. What he was putting in his pocket appeared to be bottles. Officer Moore stopped the man with the bottles on the railroad, and found that the contained two pints of liquor, and looked like the bottles that were found on the premises of the defendant.

The defendant, Beam, was one of the three men coming out of this shop building at the time that the officer Moore got the two pints of whisky. This shop building was about 50 yards from the defendant's house. The son of the defendant, Audie Beam, on seeing the officers, ran back in the shop, and they heard something smashing in there. Officer E. W. Dixon then went to the shop, and when he reached the door, Audie Beam was breaking bottles out of the window against the side of the house. The bottles were filled with whisky. "I ran in after him, and he jumped out of the window and ran across a big field. As he ran, he had his arms full and would throw the bottles against the ground and break them"—Dixon testified. Young Beam also had bottles in his pocket.

The officers, continuing the search, found something like 18 to 20 gallons of liquor, apparently concealed, on the premises. Besides the bottles that were broken, as above stated, they found in the barn, which was nearer the house than the shop, some jars, one of which had liquor in it. In the shop there were bottles covered up and hid. The ground nearby had been hollowed out into a trench, and a plank was over it; that is, the ground had been turned back, and a hollow place thus made, and in it were some of the bottles. Just above the shop they found a keg, lying beside a stump, with a few briers over it, that contained about 15 gallons. At the defendant's sawmill, about 200 yards from the house, they found some large empty kegs, which had had whisky in them. They also found two 5-gallon demijohns. There had been liquor in them, and tracks about them appeared to have been made the night before.

Ryburn & Hoey and O. Max Gardner, all of Shelby, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER, J. [1] It Is manifest, we think that there was sufficient evidence to be submitted to the jury, as to the defendant's guilt upon the charge contained in the indictment or warrant.

Exception 1 was to the exclusion of an answer to a question put by defendant's counsel to Officer E. W. Dixon on his cross-examination: "Did Audie Beam tell you whose whisky that was right at the time that you arrested him?" The state objected, and the objection was sustained. If Audie Beam himself had been on trial, the exclusion of the answer to this question would have been error, but Audie Beam was not on trial; consequently this was a mere declaration of a third party, and hearsay.

Exceptions 3, 4, and 5 are untenable. They relate to testimony offered by the defendant, that he had forbidden his son Audie Beam, who was the real culprit, to deal in liquor on his (defendant's) premises, and that, instead of selling liquor there himself, or keeping it for sale, he had protested against

[115 S.E. 178]

such illegal traffic, and very positively forbidden it. These exceptions do not appear very clearly in the pact of the record where they are first noticed, and especially as to what evidence of this kind was permitted by the court to be heard by the jury, but upon a close examination of the charge of Judge McElroy it appears that the evidence was submitted to the jury for their consideration and a proper and quite a full instruction given in connection with it. It was admitted, at least, substantially by the court, although rejected at first No harm or prejudice has therefore been suffered by the defendant in connection with this testimony.

The exceptions to the verdict and judgment, because there was no presentment or indictment, are, as we have shown, without any force, as article 5 of the federal Constitution does not apply. It reads as follows:

"No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury."

It applies only to the federal courts and their procedure, as will appear by the authorities hereinafter cited when this question will be further considered."

Exception 6 was taken to the admission of evidence that J. P. Hambright had bought whisky from the defendant about 8 years before, and had paid him $1 for a quart. The state contended that evidence of sales previous to the 2-year limit of the statute is admissible as a circumstance sustaining the allegation of the state that defendant had liquor in his possession for the purpose of sale within the 2-year limit. This may be true, and yet the evidence be incompetent, as it is, upon another alleged ground, which is, that the testimony of the witness J. P. Ham-bright, related to a transaction too remote in point of time, and not so connected with the transaction now in question for it to be any evidence of the knowledge of the defendant that the liquor was kept for sale, or to show his motive or intent in disposing of it, if he did so, and, further, as having no relevancy, because the alleged sale which is referred to in Hambright's testimony was totally unconnected with the offense for which the defendant is indicted in this case. State v. Beam, 179 N. C. 768, 103 S. E. 370, and authorities infra.

The case of State v. Murphy, 84 N. C. 742, is, upon this question, a very instructive and illuminating one, the opinion being by Justice Ashe, who had for many years large experience in the trial of criminal cases, when at the bar, and was profoundly learned in that branch of legal science. In the Murphy Case, after reviewing several of the leading cases decided in this country and in England, he said:

"It is a fundamental principle of law, that evidence of one offense cannot be given in evidence against a defendant to prove that he was guilty of another. We have been unable to find any exception to this well-established rule; except in those cases where evidence of independent offenses have been admitted to explain or illustrate the facts upon which certain indictments are founded, as where in the investigation of an offense, it becomes necessary to prove the quo animo, the intent, design, or guilty knowledge, etc. In such cases, it has been held admissible to prove other offenses of like character, as for instance, in indictments for passing counterfeit money, the fact that the defendant, about the same time, had passed other counterfeit money of like kind, has been uniformly held to be admissible to show the scienter or guilty knowledge. So on a charge for sending a threatening letter, prior and subsequent letters from the defendant to the person threatened, have been received in evidence, explanatory of the meaning and intent of the particular letter, upon which the indictment is found. Rex v. Boucher, 4 C. & P. 562."

And as illustrating the principle involved in that case, he further stated that, on indictments for receiving stolen goods knowing them to be stolen, the prosecutor has been allowed to prove several acts of like character, with the view of showing therefrom a guilty knowledge on the part of the defendant. Whar. Cr. Law, § 639. But, as was suggested by the author, said Justice Ashe, there should be some evidence showing a link or connection between them.

In Rex v. Davis, 6 Car. & P. 117, also approved by this court in the Murphy Case, it appeared that, on the trial of an indictment for receiving stolen goods, evidence was admitted for the purpose of showing guilty knowledge of the defendant, that other goods found, at the same time, in the house of the defendant, were stolen, although they were the subject of an indictment then pending. The Judge before whom it was tried, said:

"A particular line is not fixed upon. All is evidence with a view to the scienter. There is no excluding the other articles found. But I do not think you should go further." That is, that the evidence was admissible to show the guilty knowledge of the defendant, but for no other purpose. "It is important not to confound the principles upon which the two classes of eases rest. On the one hand it is admissible to produce evidence of a distinct crime to prove scienter, or make out the res gestæ, or to exhibit a chain of circumstantial evidence of guilt in respect to the act charged. On the other, it is necessary strictly to limit the evidence to these exceptions, and to exclude...