State v. Cook, 258

• Decision Date: 27 March 1968
• Docket Number: No. 258,258
• Citation: 273 N.C. 377,160 S.E.2d 49
• Court: North Carolina Supreme Court
• Parties: STATE, v. Linda E. COOK, Joyce A. Furr and Frances Ann Owens.

Page 49

160 S.E.2d 49

273 N.C. 377

STATE, v. Linda E. COOK, Joyce A. Furr and Frances Ann Owens.

No. 258.

Supreme Court of North Carolina.

March 27, 1968.

T. O. Stennett, Charlotte, for defendant appellants.

T. W. Bruton, Atty. Gen., and James F. Bullock, Deputy Atty. Gen., for the State.

HUSKINS, Justice.

Defendants were convicted of violating G.S. § 90--113.2(3) which makes it unlawful 'for any person to possess a barbiturate or stimulant drug unless such person obtained such barbiturate or stimuland drug in good faith on the prescription of a practitioner * * *' licensed to prescribe or dispense such drugs. Any person violating this statute, or any person who conspires, aids, abets or procures another to violate it, is, for the first offense, guilty of a misdemeanor. G.S. § 90--113.7.

Defendants assign as error that: (1) the search warrant was not issued by one legally authorized to do so and therefore void; (2) the evidence obtained by use of the void search warrant was inadmissible; (3) lay evidence was admitted to prove defendants were under the influence of drugs; (4) the trial judge refused to state the contentions of the defendants in the charge; and (5) the motion for nonsuit at the close of all the evidence should have been allowed. The assignments will be discussed in the order named.

1. R. G. Hinson took the oath of office as a justice of the peace on 19 November 1965 and resigned from that office on 20 August 1967. He had previously taken the oath of office as clerk of the Mecklenburg County Recorder's Court on 1 December 1964 and continued to serve in that capacity after taking the oath as a justice of the peace, and was so serving on the date of the trial of this case. He had also been wearing the uniform of a policeman for years and acting as court bailiff, but he was paid through the recorder's court budget and in reality was not a police officer. The search warrant in this case was issued on 12 April 1967 and signed 'R. G. Hinson, Justice of the Peace.' Defendants challenge his authority to issue it.

G.S. § 15--25.1 authorizes a justice of the peace, or any judge, clerk or assistant clerk of any court of record to issue search warrants authorizing an officer to search a person or place for barbiturate or stimulant drugs.

The County Recorder's Court of Mecklenburg County, established under Chapter 7, Article 25 of the General Statutes of North Carolina, is a court of record. G.S. § 7--218. Hence, whether R. G. Hinson was a justice of the peace or clerk of county recorder's court on 12 April 1967, he could issue warrants to search persons or places for barbiturates. He had such authority in either capacity. G.S. § 15--25.1. See also 1949 N.C. Session Laws, Chapter 955. Of course he could not hold both offices at the same time. Constitution of North Carolina, Article XIV, Sec. 7. The record discloses that while holding the office of clerk of the county recorder's court he accepted the office of justice of the peace without surrendering the first office. In doing so, 'he automatically and instantly vacates the first office, and he does not thereafter act as either a De jure or a De facto officer in performing functions of the first office because he has neither right nor color of right to it.' Edwards v. Bd. of Education, 235 N.C. 345, 351, 70 S.E.2d 170, 175, and cases cited; accord: Atkins v. Fortner, 236 N.C. 264, 72 S.E.2d 594. 'It is doubtless the general rule that where a man accepts an office under the state, he vacates another held under the same sovereignty * * *' Foltz v. Kerlin, 105 Ind. 221, 4 N.E. 439, 5 N.E. 672.

We hold, therefore, that Hinson was a justice of the peace at the time of the issuance of the search warrant on 12 April 1967 and was legally empowered to issue it. Hence, challenge to its validity is overruled.

2. Evidence obtained by search under a valid warrant is competent. State v. Smith, 251 N.C. 328, 111 S.E.2d 188. The second assignment of error is overruled.

3. Defendants contend that a lay witness is incompetent to give opinion evidence to the effect that defendants were under the influence of drugs. In State v. Brodie, 190 N.C. 554, 130 S.E. 205, the Court said:

'It is a familiar principle that one who is called to testify is usually restricted to facts within his knowledge; but if, by reason of opportunities for observation he is in a position to judge of the facts more accurately than those who have not had such opportunities, his testimony will not be excluded on the ground that it is a mere expression of opinion. McKelvey on Evidence, 172, 231; Greensboro v. Garrison, 190 N.C. 577, 130 S.E. 203; Hill (& Brooks v. Louisville & N.R. Co.) 186 N.C. 475, 119 S.E. 884; Shepherd v. Sellers, 182 N.C. 701, 109 S.E. 847; Marshall v. Interstate Telephone (& Telegraph) Co., 181 N.C. 292, 106 S.E. 818.'

From Beal v. Robeson, 30 N.C. 276 (1848) to State v. Flinchem, 247 N.C. 118, 100 S.E.2d 206 (1957), and since, a lay witness in this State has been held competent to testify whether or not in his opinion a person was under the influence of an intoxicant on a given occasion when the witness observed him.

Some cases hold that the rule giving a witness the right to state his opinion as to the intoxicates condition of a person applies also to opinion evidence as to whether a person is under the influence of some narcotic or other drug. Commonwealth v. Johnson, 198 Pa.Super. 51, 182 A.2d 541; Miller v. Hamilton Brown Shoe Co., 89 S.C. 530, 72 S.E. 397; 31 Am.Jur.2d, Expert and Opinion Evidence § 102. There is other authority that special experience is required before a witness is qualified to give an opinion as to whether a person is under the influence of drugs. People v. Moore, 70 Cal.App.2d 158, 160 P.2d 857; 31 Am.Jur.2d, supra.

In this case the officer observed the condition of defendants. They were 'sleepy * * * had glassy dilated eyes * * * in a stupor * * * mumbling * * * staggering * * * had no odor of alcohol about them.' Nembutal capsules were found on the floor and elsewhere in the room. Laboratory tests showed they were barbiturates. Two defendants later surrendered thirty-three barbiturate capsules. Seeing defendants in their drugged condition and observing their manner of speech and movement, the witness was better qualified than the jury to draw inferences and conclusions from what he saw and heard. Their condition was a surrounding circumstance relevant to the issue of the trial, that is, the alleged unlawful possession of barbiturate druge. Hence, under the facts of this case it was not prejudicial error to permit the officer to describe their condition to the jury and express an opinion based thereon that defendants were under the influence of drugs. This assignment is overruled.

4. Defendants assign as error the refusal of the trial court, upon request, to charge the jury with respect to the contentions of defendants. A trial judge is not required to state the contentions of the litigants. But when he undertakes to give the contentions of one party he must fairly charge as to those of the other. Failure to do so is error. Rocky Mount Savings & Trust Co. v. Aetna Life Ins. Co., 204 N.C....