State v. Cofield

• Decision Date: 20 November 1957
• Docket Number: No. 435,435
• Citation: 247 N.C. 185,100 S.E.2d 355
• Court: North Carolina Supreme Court
• Parties: STATE, v. Frank COFIELD.

Page 355

100 S.E.2d 355

247 N.C. 185

STATE, v. Frank COFIELD.

No. 435

Supreme Court of North Carolina.

Nov. 20, 1957

George B. Patton, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

Jack Senter, Fuquay Springs, and Charles W. Daniel, Varina, for defendant, appellant.

PARKER, Justice.

On 3 December 1955 W. L. Pritchett and Hoke Smith, one a deputy sheriff of Wake County, and the other a liquor law enforcement officer of the Wake County A. B. C. Board, armed with a search warrant, went to the home of the defendant. The officers searched the whole house. They found sitting on the kitchen table a halfgallon jar filled with corn whisky and some five or six drinking glasses. They also found in the house another half-gallon fruit jar with about half an inch of corn whisky in it. These jars did not have on them any where any revenue stamps of the United States Government, or any stamps of any A. B. C. Stores of the State of North Carolina.

On the same date a warrant was issued returnable to the Fuquay Springs Recorder's Court, Middle Creek Township, Wake County, charging the defendant on 3 December 1955 with the unlawful possession of nontax-paid liquor for the purpose of sale, to-wit, one-half gallon. On 26 January 1956 the defendant was tried on this warrant in the aforesaid Recorder's Court. He was found guilty, and from the judgment imposed he appealed to the Superior Court.

The case came on for trial at the July Term 1956 of the Wake County Superior Court before Judge Bone. Before the defendant pleaded to the warrant, Judge Bone allowed an oral motion of the solicitor to amend the warrant so as to charge the additional offense of the unlawful possession of nontax-paid liquor, a violation of G.S. § 18-48. Whereupon the defendant pleaded Not Guilty. The jury found the defendant Not Guilty of the possession of nontax-paid spirituous liquor for the purpose of sale, but Guilty of the possession of nontax-paid spirtuous liquor. Judge Bone sentenced the defendant to imprisonment for three months. During the term of court Judge Bone on his own motion and in the defendant's absence set aside the verdict in his discretion, and ordered a new trial, but did not vacate his judgment of imprisonment, which appears in the court's Judgment Docket over his signature.

Defendant's first assignment of error is that Judge Bone erred in setting aside in his discretion the verdict of Guilty rendered at the July Term 1956, and in failing to vacate his three months' sentence of imprisonment based on such verdict. Defendant's fourth assignmet of error is that Judge Bickett at the March Term 1957 failed to submit to the jury an issue of former jeopardy. Defendant's fifth assignment of error is that Judge Bickett erred in denying defendant's motion to set aside the verdict as being contrary to the evidence. Defendant states in his brief that assignments of error Nos. 1, 4 and 5 'are specifically abandoned by the appellant.'

After the jury was impaneled, and before the introduction of evidence began, the defendant moved to dismiss the case 'on the grounds of double jeopardy.' Judge Bickett denied the motion, the defendant excepted, and this is his second assignment of error.

G.S. § 18-50 makes the possession for the purpose of sale of illicit liquor a general misdemeanor. G.S. § 18-48 provides that the possession of whisky upon which the taxes imposed by the laws of Congress of the United States or by the laws of this State have not been paid is a general misdemeanor. Each statute creates a specific criminal offense, and a violation of G.S. § 18-48 is not a lesser offense included in the offense defined in G.S. § 18-50. State v. Morgan, 246 N.C. 596, 99 S.E.2d 764; State v. Daniels, 244 N.C. 671, 94 S.E.2d 799; State v. Hall, 240 N.C. 109, 81 S.E.2d 189; State v. Peterson, 226 N.C. 255, 37 S.E.2d 591; State v. McNeill, 225 N.C. 560, 35 S.E.2d 629. Judge Bone had no power to permit the warrant charging a violation of G.S. § 18-50 to be amended so as to charge also a violation of G.S. § 18-48. State v. Cooke, 246 N.C. 518, 98 S.E.2d 885; State v. Mills, 246 N.C. 237, 98 S.E.2d 329; State v. McHone, 243 N.C. 231, 90 S.E.2d 536; State v. Clagg, 214 N.C. 675, 200 S.E. 371; State v. Goff, 205 N.C. 545, 172 S.E. 407; State v. Taylor, 118 N.C. 1262, 24 S.E. 526.

The trial, conviction and sentence of the defendant on the amended count in the warrant at the July Term 1956 charging the unlawful possession of nontax-paid liquor, a violation of G.S. § 18-48, 'offends Sections 12 and 13 of Article I of the Constitution of North Carolina, which provide, in essence, that the superior court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the superior court from the sentence pronounced against him by the inferior court on his convic tion for such misdemeanor.' State v. Hall, supra [240 N.C. 109, 81 S.E.2d 190]. It would seem that Judge Bone set the verdict of Guilty aside in his discretion because of the decision in the Hall case.

This Court said in State v. Bell, 205 N.C. 225, 171 S.E. 50, 52: '* * * jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in the case.'

Jeopardy did not attach at the July Term 1956 on the amended change in the warrant charging a violation of G.S. § 18-48, because the court had no jurisdiction to try him for such offense.

The defendant contends that he cannot be brought to trial a second time for a violation of G.S. § 18-48, because Judge Bone set the verdict aside of his own motion, and without the defendant's instigation, and cites in support of his contention. 22 C.J.S. Criminal Law § 271. This section states: 'Where the verdict is set aside or judgment arrested at instigation of the accused, he may be tried again for the...