State v. Epps

• Decision Date: 15 June 1938
• Docket Number: 577.
• Citation: 197 S.E. 580,213 N.C. 709
• Parties: STATE v. EPPS.
• Court: North Carolina Supreme Court

197 S.E. 580

213 N.C. 709

STATE v. EPPS.

No. 577.

Supreme Court of North Carolina

June 15, 1938

Appeal from Superior Court, Scotland County; Frank M. Armstrong Judge.

M. W Epps was convicted of possessing for the purpose of sale a quantity of spirituous, vinous, fermented malt liquor and intoxicating bitters, and of unlawfully transporting such liquors, and he appeals.

No error.

Where proviso of a statute is in the nature of an exception which withdraws the case provided for from the operation of the act, it is not necessary in an indictment or other charge founded upon the act to negative the proviso, and if the case is within the proviso it is for accused to show that fact by way of defense, but if the provision of a statute is such as to bring an offense within the statute by qualification, an indictment must bring the case within the proviso.

Repeals of statute by implication are not favored and to work a repeal implication must be necessary.

The defendant was indicted on the following Bill of Indictment:

"State of North Carolina,

Scotland County Superior Court

August Term, A.D., 1937.

The jurors for the State upon their oath present that M. W. Epps, late of the County of Scotland, on the 8th day of April in the year of our Lord one thousand nine hundred and thirty-seven, with force and arms, at and in the county aforesaid,

First Count. And the jurors for the State upon their oaths do further present that M. W. Epps, late of the aforesaid county, on the said date, with force and arms, at and in said county aforesaid, did wilfully and unlawfully have in his possession for the purpose of sale a quantity of spirituous, vinous, fermented, malt liquors and intoxicating bitters, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.

Second Count. And the jurors for the State upon their oaths do further present that M. W. Epps, late of the aforesaid county, on said date, with force and arms, at and in the county aforesaid, did wilfully and unlawfully transport a quantity of spirituous, vinous, fermented, malt liquors and intoxicating bitters, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State. Pruette, Solicitor."

The defendant plead not guilty.

Lamar Smith, witness for the State, testified, in part: "On the night of the 8th or 9th of April of this year, I saw the defendant, M. W. Epps. I did not know him personally at the time. I was then a Deputy Sheriff of Scotland County, and Mr. Todd and I had parked out on the road that goes up to Mrs. Cooper's place. As we waited there, we saw this car come up a little way out of the field. It got about as far as from here to the back of the Court House from where the road comes into the Public Road, and we cut off our lights, and pulled up pretty close to him, and he stopped, and we did too. I jumped out of the automobile, and started toward his car; and he put it in reverse, and started backing; and I ran up beside the automobile, and shined my flashlight on him. There were just two men in the car. Epps was operating it, and there was just one man with him. They kept backing down the road pretty fast, and I was running along beside the car, and Mr. Todd was coming with his car. It had been raining; the ground was fresh plowed; and he kind of lost control of the car, backed up in the field, and bogged down. He jumped out of the car, and they ran. The car belonged to Epps, and, after the men ran, we found seven half-gallons of boot-leg whiskey in the automobile. The next morning I saw the defendant back of the Court House about eight-thirty o'clock, and he was arrested about ten minutes after that."

F. H. Todd, who was also a Deputy Sheriff and with Lamar Smith, corroborated him. The defendant did not take the stand in his own behalf, but several witnesses were introduced by him to establish an alibi.

The County of Scotland has not voted under the "A. B. C. Act".

The jury "Upon their oath say that the said M. W. Epps is guilty thereof in manner and form as charged in the indictment." The defendant was sentenced: "Shall be confined in the common jail of Scotland County for a period of eleven months, to be assigned to work upon the roads of North Carolina as provided by law. It is further adjudged by the court that the defendant's automobile shall be confiscated and sold by the following order (setting same forth)."

The defendant made several exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

Jennings G. King, of Laurinburg, for appellant.

A. A. F. Seawell, Atty. Gen., and Harry M. McMullan and Emmett C. Willis, Asst. Attys. Gen., for the State.

CLARKSON Justice.

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

The evidence, as before set forth, was plenary to be submitted to the jury on the bill of indictment containing two counts. The defendant was convicted on both counts.

"In State v. Toole, 106 N.C. 736, 11 S.E. 168, it is said: 'There having been a general verdict of guilty on two counts for offenses punishable alike, it is immaterial to consider, as to the other count, whether there was error committed or not, unless it was such error as might or could affect the verdict of guilty on the second count. * * * If it is a general verdict of guilty upon an indictment containing several counts, charging offenses of the same grade, and punishable alike, the verdict upon any one, if valid, supports the judgment; and it is immaterial that the verdicts upon the other counts are not good, either by reason of defective counts, or by the admission of incompetent evidence or giving objectionable instructions as to such other counts, provided the errors complained of do not affect the valid verdict rendered on this count.' State v. Newton, 207 N.C. 323, 328, 177 S.E. 184. Where a verdict refers to only one of several counts in an indictment, it amounts to an acquittal upon counts not referred to. State v. Hampton, 210 N.C. 283, 284, 186 S.E. 251." State v. Coal Co., 210 N.C. 742, 749, 188 S.E. 412, 416.

The defendant excepted and assigned error (which cannot be sustained) to the following portion of the charge of the Court below: "If the defendant was there in this car-if the car belonged to him or if it didn't belong to him-if he was there aiding and abetting and counselling and advising Goins or any other person in the possession and transportation of this liquor, whether he was driving or not, he would be just as guilty as the person who was driving; that is, he wouldn't actually have to have the liquor on his person, if he had it in his constructive possession or in his car or under his control, he would be guilty, and it would make no difference whether he was driving the car or not."

In State v. Davenport, 156 N.C. 596, 614, 72 S.E. 7, 14, is the following: "A person aids and abets when he has 'that kind of connection with the commission of a crime which, at common law, rendered the person guilty as a principal in the second degree. It consisted in being present at the time and place, and in doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission.' Black's Dict. p. 54, citing 4 Blackstone, 34. An abettor is one who gives 'aid and comfort,' or who either commands, advises, instigates, or encourages another to commit a crime-a person who, by being present, by words or conduct, assists or incites another to commit the criminal act (Black's Dict. p. 6); or one 'who so far participates in the commission of the offense as to be present for the purpose of assisting, if necessary, and in such case he is liable as a principal.' 1 McLain Cr.Law, § 199." State v. Jarrell, 141 N.C. 722, 725, 53 S.E. 127, 8 Ann.Cas. 438; State v. Cloninger, 149 N.C. 567, 572, 63 S.E. 154; State v. Powell, 168 N.C. 134, 135, 83 S.E. 310; State v. Hart, 186 N.C. 582, 584, 585, 120 S.E. 345; State v. Baldwin, 193 N.C. 566, 137 S.E. 590; State v. Ritter, 197 N.C. 113, 115, 147 S.E. 733; State v. Anderson, 208 N.C. 771, 785, 786, 182 S.E. 643; State v. Casey, 212 N.C. 352, 354, 193 S.E. 411; State v. Ray, 212 N.C. 725, 731, 194 S.E. 482.

In State v. Meyers, 190 N.C. 239, 243, 129 S.E. 600, 602, Varser, J., says: "If the liquor was within the power of the defendant, in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if his possession had been actual. The possession may, within this statute, be either actual or constructive." State v. Norris, 206 N.C. 191, 197, 173 S.E. 14.

The evidence was to the effect that "The car belonged to Epps, and, after the men ran, we found seven half-gallons of boot-leg whiskey in the automobile."

In State v. Dickerson, 189 N.C. 327, 331, 127 S.E. 256, 258, it is said: "The fact that immediately after the discovery of a crime the person charged with its commission flies [fled], is admitted as a circumstance to be considered by the jury. State v. Nat, 51 N.C. 114."

The Attorney General (now a member of this Court) in his able and well prepared brief, says: "Counsel for defendant has raised for the first time the question of whether or not the bill of indictment in this case charges the defendant with an offense. The first count of that bill provides in substance that the defendant did 'wilfully and unlawfully have in his possession for the purpose of sale' a quantity of...