State v. Cochran
| Decision Date | 02 June 1949 |
| Docket Number | No. 363.,363. |
| Parties | STATE. v. COCHRAN. |
| Court | North Carolina Supreme Court |
STATE.
v.
COCHRAN.
No. 363.
Supreme Court of North Carolina.
June 2, 1949.
[53 S.E.2d 664]
Appeal from Superior Court, Cabarrus County; Peyton McSwain, Special Judge.
Ralph Cochran was convicted of unlawful sale of beer, and he appeals.
Reversed.
Criminal prosecution on warrant charging the unlawful sale of beer.
Defendant was tried in the county recorder's court of Cabarrus County on a warrant which charges that he "did unlawfully and willfully possess for the purpose of sale and sell one bottle of tax-paid beer of more than one-half of one per cent of alcohol by volume but not more than five per cent of alcohol by weight in violation of North Carolina General Statutes 18-126, contrary to the form of the statute..." There was a verdict of guilty and he appealed from the judgment pronounced thereon. When the cause came on for hearing in the Superior Court, he moved to quash the warrant for that it fails to state a criminal offense. The court, after hearing the motion, found certain facts in respect to an election held under the provisions of G.S. § 18-124, including a finding that said election was held within sixty days next preceding a municipal primary in the City of Concord, and overruled the motion. Defendant excepted.
In the trial proper, it was made to appear that defendant, on 28 April 1949, had in his possession for the purpose of sale and did sell one bottle of beer on which the tax had been paid. The solicitor formally admitted that on said date the defendant "owned, possessed and displayed in his place of business where said beer was possessed and sold, Privilege Licenses of the City of Concord, of the County of Cabarrus, and of the State of North Carolina, for the possession and sale of beer, which said licenses were in full force and effect."
The defendant offered no evidence and there was no demurrer to the evidence or motion for a directed verdict. Nor was any evidence respecting the alleged election offered for the consideration of the jury under proper instructions from the court.
There was a verdict of guilty. Thereupon, the defendant moved in arrest of judgment. On this motion the court found the same facts as those found on the motion to quash, and, on the facts found, denied the motion. Defendant excepted. Judgment was pronounced and defendant excepted and appealed to this Court
Attorney General Harry M. McMullan, Assistant Attorney General Hughes J. Rhodes, and Forrest H. Shuford, II, Raleigh, of Staff for the State.
John Hugh Williams, Concord, for defendant appellant.
BARNHILL, Justice.
As an averment negativing the possession of a license is not essential, the
[53 S.E.2d 665]warrant charges a criminal offense. The defendant was convicted on evidence unchallenged by exception or by motion to dismiss as in case of nonsuit. There was no prayer for a directed verdict. The cause was submitted to the...
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Wolfe v. State of North Carolina
... ... The rule that a motion to quash cannot rest on matters dehors the record proper has, so far as investigation reveals, been rigidly adhered to in all subsequent North Carolina decisions. 12 See State v. Brewer, 180 N.C. 716, 717, 104 S.E. 655, 656; State v. Cochran, 230 N.C. 523, 524, 53 S.E.2d 663, 665; State v. Andrews, 246 N.C. 561, 565, 99 S.E.2d 745, 748. In the present case the state court simply followed this settled rule of local practice ... A similar conclusion must be reached as to the denial of the motion made at the end of ... ...
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State v. Cooke
... ... 'The court, in ruling on the motion, is not permitted to consider extraneous evidence. Therefore, when the defect must be established by evidence aliunde the record, the motion must be denied. ' State v. Cochran, 230 N.C. 523, 53 S.E.2d 663, 665; Richardson v. State, 109 Tex.Cr.R. 148, 4 S.W.2d 79; 27 Am.Jur. 695 ... Since none of the reasons nor all combined sufficed to sustain the motion to quash, the court correctly overruled the motion and put defendants on trial for the offense with ... ...
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State v. Bass
... ... State v. Gregory, 223 N.C. 415, 27 S.E.2d 140 (1943). 'The court, in ruling on the motion, is not permitted to consider extraneous evidence. Therefore, when the defect must be established by evidence Aliunde the record, the motion must be denied.' State v. Cochran, 230 N.C. 523, 53 S.E.2d 663 (1949). Accord State v. Cooke (State v. Wolfe) et al., 248 N.C. 485, 103 S.E.2d 846 (1958); State v. Brewer, 180 N.C. 716, 104 S.E. 655 (1920). 'At least since the decision in State v. Turner, 170 N.C. 701, 86 S.E. 1019, in 1915, it has been the settled rule in North ... ...
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