State v. Elder

• Decision Date: 02 February 1940
• Docket Number: 505.
• Parties: STATE v. ELDER.
• Court: North Carolina Supreme Court

6 S.E.2d 840

217 N.C. 111

STATE v. ELDER.

No. 505.

Supreme Court of North Carolina

February 2, 1940

This is a criminal action in which it was charged that defendant did "buy, possess, possess for the purpose of sale retail and transport intoxicating liquors in violation of the Turlington, Act." C.S.Supp.1924, § 3411(a) et seq. Upon a written and sworn affidavit of an officer, who stated therein that he acted upon "information", a warrant authorizing the search of defendant's premises for liquor was issued. Acting under the search warrant officers searched defendant's apartment, where he and friends were having a frog-leg supper. The officers found one gallon of tax-paid liquor. Drinking glasses were found in defendant's kitchen. On a roof, outside a window in a hallway leading to defendant's apartment, the officers found 102 empty bottles, most of them in a sack but from six to ten lying on the roof. Defendant's witnesses indicated that the bottles were on the roof when he moved to the apartment, but on cross-examination it appeared that the prior occupant left the apartment near the first of the year and that fifteen of the empty bottles taken from the roof bore dates ranging from February through April of that year. The State's evidence also indicated that one of the doors of defendant's apartment, as well as one of the bedroom walls, contained peep-holes covered on the inside with pieces of cardboard which could be moved back and forth, and that these peep-holes (and two others) were in the apartment during the tenancy of the prior occupant, who was convicted of selling liquor while there.

From a verdict of "guilty", and sentence pronounced thereupon, the defendant made numerous exceptions and assignments of error and appealed to the Supreme Court.

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

A A. Tarlton, of Charlotte, for defendant.

CLARKSON Justice.

The defendant, at the close of the State's evidence and at the conclusion of all the evidence, made motions in the Court below for judgment of nonsuit. N.C.Code 1935 (Michie), § 4643. The Court below overruled these motions, and in this we can see no error.

Aside from the assignment of errors as to the refusal to grant the motions for judgment of nonsuit, the principal assignment of error deals with the admission of evidence procured under an allegedly invalid search warrant. Chapter 339, § 1 1/2, Public Laws of 1937, provides that no facts discovered by virtue of a search warrant issued "without first requiring the complainant or other person to sign an affidavit under oath and examining said person or complainant in regard thereto", shall be "competent as evidence in the trial of any action." The affidavit for the warrant of search and seizure, and the warrant itself, appear in the record. It is apparent that the affidavit was sworn to by a rural policeman of Mecklenburg County before a justice of the peace. To this extent the instant affidavit is in strict compliance with the requirement of the statute. However, the body of the affidavit reveals that the officer gave therein as the basis for his oath merely the one word, "information". It would seem that the defendant takes the position that the failure of the officer, in his affidavit, to give in detail the source and extent of the information upon which he seeks the warrant, is in itself sufficient to render incompetent evidence secured by virtue of the warrant issued upon such affidavit. We cannot so hold.

In so far as the record speaks, the complaining officer made the required affidavit under oath; nor does it negative the presumption that the officer was further examined thereto. State v. Shermer and Wray, 216 N.C. 719, 6 S.E.2d 529. The writing of the single word "information" may have been but a short-hand statement by the justice of the peace tending to indicate generally the type of evidence given to him by the officer. If defendant wished to examine into the character of the examination made by the justice of the peace and the extent of the information upon which the officer acted, he made no effort to do so but elected to challenge the warrant upon the basis of the affidavit and warrant themselves. Looking to the legislative intent of Chapter 339, § 1 1/2, Public Laws of 1937, it evinces the intention to prohibit the use of "pocket"...