State v. Coleman

• Decision Date: 03 December 1919
• Docket Number: 468.
• Citation: 101 S.E. 261,178 N.C. 757
• Parties: STATE v. COLEMAN.
• Court: North Carolina Supreme Court

101 S.E. 261

178 N.C. 757

STATE v. COLEMAN.

No. 468.

Supreme Court of North Carolina

December 3, 1919

Appeal from Superior Court, Burke County; Harding, Judge.

R. E Coleman was convicted of violations of the liquor law, and appeals. No error.

Handing a jug to a companion to take a drink is not such "delivery" of intoxicating liquors as is contemplated by Laws 1915, c. 97, prohibiting the transfer and delivery of intoxicating liquors, etc.

Clark C.J., dissenting in part.

This is a criminal action and from the judgment upon the verdict the defendant appealed to this court. The indictment upon which he was tried, charged:

(1) Possession of liquor with the purpose of sale.

(2) Receipt of more than one quart at a time.

(3) Receipt of more than one quart at a time in a single package.

(4) Transportation of the liquor.

The defendant was convicted on the last three counts and acquitted on the first.

The evidence of the state tended to show that the defendant on the night of June 13, 1919, drove the witness Scott and Ervin, in his automobile, out south about three miles from Morganton; that, after arriving at his point of destination he left the other two in his car, while he, taking a suit case with him, went off into the woods; that in about ten minutes he returned, having a gallon jug of corn whisky in the suit case; that on the way back to Morganton he handed the jug to Scott to take a drink, and while he was trying to withdraw the stopper the officers came up, and arrested them. The evidence for defendant was that Scott bought and received the liquor and not the defendant.

To the following instructions of the court the defendant excepted:

"The state contends if it has failed to satisfy you that he was the man that got the liquor, wherever it was, and failed to satisfy you he actually received it in his possession, the state contends that he was guilty of transporting it from a point within North Carolina to some other point to some person more than a quart of liquor. The state contends it has shown he got the liquor, put it in the suitcase, brought it and put it in the automobile and delivered it to Mr. Scott; that Scott took it into his own hands and tried to get the stopper out and take a drink. If the state has satisfied you of that beyond a reasonable doubt, then he would be guilty, and you should convict him on that count.

(2) He contends he had an automobile, and, while he knew it was his purpose to go in the country with Mr. Scott, that he knew Scott was going after liquor, or that was his purpose in going there to get some liquor--he stated that on the stand.

(3) To the failure of the court to instruct the jury as to the rules of law which applied upon the defendant's contention in event the jury found that the evidence sustained such contention, and to the failure of the court to instruct the jury as to the principles of law which would apply upon the defendant's contention which were given by the court, the defendant excepts upon the ground that it was useless to present such contention, unless the law applying thereto was also presented to the jury.

(4) If you are satisfied beyond a reasonable doubt that he was transporting liquor from one point in this state to another point to some person you will convict him of that."

W. C. Newland, of Lenoir, for appellant.

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

ALLEN J.

The defendant is indicted in the first count under chapter 44, Laws 1913, and in the second, third, and fourth counts under chapter 97, Laws 1915, and these statutes cover the several offenses charged in the indictment.

The exceptions are to the charge, and it is well to consider the second and third first, as the first and fourth instructions relate to the same count.

The objection of the defendant to the second instruction is to the use of the words "he stated that on the stand," upon the ground it represented the evidence of the defendant incorrectly, but it will be observed his honor was then stating the contentions of the parties, and "if contentions are not properly stated, the attention of the court should then be called to the omission, so that it may be supplied." Manf. Co. v. Building Co., 177 N.C. 106, 97 S.E. 718, and cases cited.

If we, however, turn to the record, we find the defendant testified, "I thought we were going after some liquor," which is substantially as his honor stated.

The third exception is to the failure to fully explain the law to the jury, but there was no legal principle involved beyond the doctrine of reasonable doubt, which was correctly stated, except as bearing on the first count, upon which the defendant was acquitted, and the fourth. On the second and third counts the controversy was one of fact as to whether the liquor was received by the defendant or Scott.

We do not approve the charge on the fourth count.

If the evidence of the state is believed, the defendant was transporting his own liquor, and not for the purpose of sale, and we do not think handing a bottle to a companion to take a drink is such delivery as is contemplated by the statute, which was construed in State v. Little, 171 N.C. 807, 88 S.E. 723, to mean transporting or carrying "to or for any other person, firm or corporation."

This does not, however, entitle the defendant to a new trial, because there are two good counts as to which there is no error, and--

"It is well settled in this state that where there is more than one count in the indictment, and there is a general verdict this is a verdict of guilty on each count, and if there is a defect as to one or more counts by reason of any defect...