State v. Burgess

• Decision Date: 14 November 1923
• Docket Number: (No. 408-D.)
• Citation: 186 N.C. 466,119 S.E. 820
• Parties: STATE. v. BURGESS.
• Court: North Carolina Supreme Court

119 S.E. 820

(186 N.C. 466)

STATE.

v.BURGESS.

(No. 408-D.)

Supreme Court of North Carolina.

Nov. 14, 1923.

Appeal from Superior Court, Anson County; Stack, Judge.

R. J. Burgess was convicted of attempting to manufacture liquor, and he appeals. Reversed.

A. A. Tarlton and McLendon & Covington, all of Wadesboro, for appellant.

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

STACY, J. [1] The defendant, R. J. Burgess, while working for a short time on thenew school building in Wadesboro, was a boarder at the house of one Tobe Honeycutt. Honeycutt and Burgess were indicted, in separate bills, charged with the unlawful manufacture of spirituous liquors. Over objection, the two cases were consolidated and tried together. We make no present ruling as to the legality or correctness of this consolidation. State v. Stephens, 170 N. C. 745, 87 S. E. 131. It is unnecessary to do so. The case turns on a demurrer to the evidence.

There was evidence tending to show the guilt of Honeycutt, but we think the conviction of Burgess for an attempt to manufacture liquor must be reversed under authority of the State v. Addor, 183 N. C. 687, 110 S. E. 650, 22 A. L. R. 219.

A few days before Christmas. 1922, two deputy sheriffs of Anson county searched the premises of Honeycutt for evidences of violation of the prohibition law. They found a barrel near the house with some beer in it, a galvanized box under the house with some mud On it, also three one-gallon jugs, and a wet sack with the odor of whisky about them, while a copper still was found in the barn a short distance away.

The only evidence tending to inculpate Burgess was an oil stove and a copper pipe found in his room, and a wet place on the floor of the room occupied by him. But it also appeared that this room was used by Honeycutt's two sons when they were at home, and that they caused the wet spot on the floor. Burgess was not there at the time of the search.

This evidence, we think, was insufficient to warrant a verdict against the defendant, R. J. Burgess, for attempting to manufacture liquor. His demurrer to the evidence, or motion for judgment as of nonsuit, under O. S. § 4643, should have been allowed.

Reversed.

CLARKSON, J. I concur in the opinion solely on the ground that there was not sufficient evidence to go to the jury on all the facts in the case.

The Legislature of North Carolina passed "an act to make the state law conform to the national law in relation to intoxicating liquors." Chapter 1, Public Laws N. C. 1923. The sentiment of the people...