State v. Cooper

• Decision Date: 10 December 1888
• Citation: 8 S.E. 134,101 N.C. 684
• Parties: STATE v. COOPER.
• Court: North Carolina Supreme Court

8 S.E. 134

101 N.C. 684

STATE v. COOPER.

Supreme Court of North Carolina

December 10, 1888

Appeal from superior court, Transylvania county; McRAE, Judge.

Indictment against J. C. Cooper for selling spirituous liquors contrary to law. He appeals from a conviction in the superior court.

Acts 1881, c. 136, changing the name of Davidson River township does not affect the "local option" act in the township, passed before such change was made.

G. N Folk, for appellant.

The Attorney General, for the State.

MERRIMON J.

It is charged in the indictment that the sale of spirituous liquors was prohibited in Davidson River township, in the county of Transylvania, by a vote of a majority of the electors of that township, as allowed by the statute, (Code, §§ 3110-3116;) and that the defendant sold such liquors within that township, while such sale was so prohibited, to sundry persons named, there being but one count in the indictment so that several distinct offenses were charged in the same indictment and in the same count. Before the defendant pleaded, "by direction of the court, and without objection from the defendant, the solicitor was required to elect as to which charge of the bill he would try upon, and a nol. pros. was entered as to all but the charge of selling to Samuel Merrill. Defendant pleads not guilty, and specially that no such election as that charged or reported was ever held." On the trial the state offered in evidence the minutes of the county commissioners of said county containing an order for an election on local option in said township; record of petitions before said board, and the original petitions of citizens of said township; record of returns of election, June, 1880, made to board of commissioners, declaring the result of said election,--for prohibition, 84; for license, 74. The register of deeds as a witness, identified the records and original petitions, and testified that there was no other record of said board concerning said election. Samuel Merrill, a witness for the state, testified that in February, 1887, he bought two packages of whisky, containing five gallons each, and four or four and a half gallons, also from the defendant, at Rectifying House, in said township. The defendant offers as a witness one Forsythe, who stated that he remembered the local option election in 1880; that he took an interest in it outside, and assisted in counting the votes. The defendant asked the following question: "Do you recollect of any votes in favor of license being thrown out after the counting of the votes?" Objection by the state sustained, and defendant excepts. The defendant's counsel offered the following further exceptions, in writing: "The counsel for the defendant offered to prove that at the election held, as alleged in the bill of indictment, there were seventy-four votes cast for license, and eighty-four for prohibition, and this was the return of the judges of said election. He then offered to prove that after the election was opened and had progressed for a while the judges took out the votes, and began de novo, without any notice of proclamation to that effect. He also proposed to prove that after the election was over, and the polls closed, the judges threw out eight or ten votes, all which were for license, and had these votes been counted it would have changed the result, or at least made it doubtful. But his honor ruled out the question intended to elicit this information, and held that the election could not be thus collaterally attacked, and thereupon the defendant excepted. The counsel further insisted that the irregularities before and after the election was closed were sufficient to annul the election, and the same was done by the officers appointed to hold the election, and employes acting under their immediate direction, and it was done for the purpose of defeating the will of the majority of the voters. But his honor was of the opinion that the election could not be thus attacked, and thereupon ruled out the evidence which was intended to be elicited by the question propounded to the witness Forsythe, and the defendant excepted. Defendant moved in arrest of judgment, on the ground (1) that the bill of indictment is defective, in that no allusion is made to the act of assembly authorizing local option, nor to the act of assembly changing the name of the township; (2) that the act of assembly, (chapter 136, 1881,) changing the name of the township, repeals the local option act; (3) that this court has no jurisdiction of the offense charged in the bill of indictment. Motion in arrest denied. Defendant excepts." There was a verdict of guilty, and judgment against the defendant, from which he appealed to this court.

The defendant made no objection on the trial to the evidence produced on the part of the state. It went to prove that an election was ordered and held according to the forms of law and that the result was ascertained and declared in writing to be in favor of "prohibition." The statute (Code, § 3114) required that it should be held as nearly as...