State v. Dowdy

• Decision Date: 10 October 1907
• Parties: STATE v. DOWDY.
• Court: North Carolina Supreme Court

58 S.E. 1002

145 N.C. 432

STATE v. DOWDY.

Supreme Court of North Carolina

October 10, 1907

Appeal from Superior Court, Craven County; Neal, Judge.

D. W Dowdy was convicted of unlawfully selling spirituous liquor and he appeals. Affirmed.

A sentence of two years' imprisonment for unlawfully selling spirituous liquor is not excessive, where the evidence tends to establish a deliberate violation of law with an evident purpose to persist in it.

Henry R. Bryan and W. D. McIver, for appellant.

Assistant Attorney General Clement and D. L. Ward, for the State.

HOKE J.

The various questions raised by the exceptions have been heretofore resolved against the defendant, and we find no error which entitles him to a new trial. Objection is made that the bill of indictment is not sufficiently definite and specific, in that it does not give the name of the person or persons to whom the alleged unlawful sale was made. There are three counts in the bill; the first two charging an unlawful sale to a person or persons to jurors unknown, and the third charging that defendant was unlawfully carrying on the business of selling spirituous liquors in prohibited territory. It may be that under section 3529 of the Code the third count could be sustained for some of the unlawful conduct forbidden by that section, but, without passing upon that question, we think the first two counts are undoubtedly good, alleging an unlawful sale to person or persons to jurors unknown. This kind of allegation should only be resorted to from necessity, and when the facts justify such a method of statement; and it seems from the authorities that when the charge is made in this way it should be proved as laid. State v. Trice, 88 N.C. 630; Archbold's Criminal Practice & Pleading, p. 124. It is important always, and required when possible, that in cases where each forbidden act constitutes a separate offense, the name of the person to whom the sale is made should be given, to the end that the defendant should have reasonable opportunity to prepare such defense as he may have, and that the bill on conviction may protect him from a second prosecution for the same conduct. State v. Faucett, 20 N.C. 239; State v. Stamey, 71 N.C. 202; State v. Tisdale (at this term) 58 S.E. 998. As a matter of form, however, the first two counts in the present bill are sufficient and have been frequently upheld. State v. Faucett, supra; 1 Chitty, Criminal Law, marg. pp. 212, 213. The two first counts then in the present bill being good, and there being evidence tending to sustain them, on general verdict of guilty, the conviction would be upheld on the good counts, even though the third should be defective. State v. Sheppard, 142 N.C. 586, 55 S.E. 146; State v. Toole, 106 N.C. 736, 11 S.E. 168.

The defendant further excepts because the court admitted on the trial, as incriminating evidence, a written paper under the hand and official seal of E. C. Duncan, collector of internal revenue, in terms as follows: "Current list of special taxpayers in Craven county, N. C., as of record Nov. 7, 1906. Lee & Dowdy, retail malt liquor dealers, New Bern, from Sept. 1, 1906. Tax $20.83. Date of payment and issue of certificate Sept. 30, 1906. Serial Number Stamp 222. 104 Queen Street; the firm consisting of N. G. Lee and D. W. Dowdy. Witness my hand and official seal. E. C. Duncan, Collector. [Seal.]"-the objection being, first, that it does not certify that a license was issued to sell spirituous liquors. Second, was it such a copy or extract from the record of any public office as should be received in evidence under the law? It is held with us that the term "spirituous liquors" includes malt liquors as well. State v. Giersch, 98 N.C. 720, 4 S.E. 193. And while the paper does not state in exact words that a license issued, we think that such a statement is by fair intendment the necessary import of the words used, and as such making a copy receivable in evidence under the law. The federal statute addressed to this question provides as follows: "That chapter three of the Revised Statutes of the United States be and hereby is amended in section thirty-two hundred and forty, so as to read: Sec. 3240. Each collector of internal revenue shall, under regulations of the commissioner of internal revenue, place and keep conspicuously in his office, for public inspection, an alphabetical list of the names of all persons who shall have paid special taxes within his district, and shall state thereon the time, place and business for which such special taxes have been paid, and upon application of any prosecuting officer of any state, county or municipality, he shall furnish a certified copy thereof, as of a public record, for which a fee of one dollar for each one hundred words, or fraction thereof, in the copy or copies so requested, may be charged. Approved June 21, 1906." This statute makes the matter certified to an official record of the office, for the purpose of the certificate, and, as such, the copy, properly certified, is made competent evidence by the express provisions of our own statutes on the subject. Revisal 1905, §§ 1616, 1617.

It is strongly urged, however, that the admission of this paper violates the constitutional right of the defendant that on a trial for crime he should have opportunity to confront his accusers and the witnesses offered to sustain the charge. This right, of such supreme importance to the citizen, so essential to any proper and impartial administration of justice, should appeal most impressively to the courts of this state, for North Carolina declined to adopt the federal Constitution until the amendment by which it was guaranteed had been formulated by the federal Congress and its adoption practically...