State v. Hammond

• Decision Date: 19 November 1924
• Docket Number: 417.
• Citation: 125 S.E. 402,188 N.C. 602
• Parties: STATE v. HAMMOND.
• Court: North Carolina Supreme Court

125 S.E. 402

188 N.C. 602

STATE v. HAMMOND.

No. 417.

Supreme Court of North Carolina

November 19, 1924

Appeal from Superior Court, Moore County; Lane, Judge.

Ruth Bell Hammond was convicted of violations of the Prohibition Act, and she appeals. Affirmed.

Criminal action tried before his honor, Lane, Judge, and a jury, at August term, 1924, of the superior court of Moore county. In the bill of indictment, found at April term, 1920, there were four counts:

(1) For unlawful possession of intoxicating liquors for the purposes of sale.

(2) Unlawful transportation.

(3) For unlawfully receiving such liquor.

(4) Unlawful purchasing, etc.

On plea of not guilty, the following evidence was offered by the state:

"F T. Currie testified for the state: I am a deputy sheriff and was acting as such on or about the 6th day of April 1924, at Pinehurst, in Moore county. On said date I had a search warrant to search the home in which the defendant Ruth Bell Hammond, lived, and searched the house where she lived under that authority. When we made the search, we found the defendant away from her home, she having gone to Carthage at that time. I found a darkey by the name of George Fowler and his wife at her home, and we proceeded to search the house. We found between four and five gallons of corn whisky. The whisky was in bottles inside the closet. We took a pin out of the hinges and went in. The door was locked. The whisky was in bottles from a quart down to a half a pint.

The bottles were of different kinds; some had paper stoppers and some had cork. I would say that there were about 32 or more bottles. Mr. Knight and Mr. McDonald searched the cellar. I saw what they brought up. It was three five-gallon oil cans. I examined the oil cans and found they had had whisky in them. We destroyed the whisky. We found in that closet, also, a hand bag which had defendant's name on it, and this was full of these bottles. The bottles in the hand bag had whisky in them. Her name was on the outside of the grip or suit case in which we found the bottles. When we arrested the defendant she said she thought she was allowed whisky for her own personal use; she said the whisky was hers. She made this statement to me at her house the next morning. No one lived in this house with her at that time that I know of. She had been living there in this house all the summer.

Cross-examination. This was all the summer just immediately preceding my finding the whisky that the defendant lived in the house. I think maybe she had been there longer than that, using this house as a dwelling, taking care of it for Mrs. Hall and living there. She had been living there some time. This whisky was found in a closet in the house in which she lived and in the part of the house she occupied. Some of the bottles were quart bottles. I think there was something like half of it in quart bottles. The other was pints and half pints. It was a grip we found in the closet, and it was full of bottles of whisky. I do not recollect how many. She was not at home at the time we made the search."

Defendant moved for a judgment of nonsuit, and, this being overruled, offered no evidence. The cause was submitted to the jury, who rendered a general verdict of guilty. Judgment on the verdict, and defendant excepted and appealed, assigning errors; these assignments as presented in the argument and maintained in the brief being:

(1) The refusal of defendant's motion for nonsuit.

(2) Refusal to give defendant's prayer for instructions:

"If the jury find from the evidence that the house in which the intoxicating liquors in question were found was at the time used and occupied as the dwelling only of defendant, and such liquors were for her personal consumption only and her bona fide guests when entertained by her therein, the jury will return a verdict of not guilty."

(3) To the charge of the court on the count for receiving.

Under Acts 1923, c. 1, receipt in one's dwelling of intoxicating liquor for personal consumption, though after date on which such act became effective, is not unlawful.

In prosecution for unlawful possession, transportation, receiving, and purchasing of intoxicating liquor, requested instruction as to effect of possession in defendant's dwelling for purpose of personal consumption, containing direction for verdict if jury so found, though correct as applied to single count of possession, held not erroneously denied when requested without restriction to that count.

U. L. Spence, of Carthage, for appellant.

J. S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

HOKE C.J.

It is recognized in this state that where a bill of indictment contains two or more valid counts for offenses of same grade and permitting like punishment, a general verdict of guilty will be construed as a conviction on each and every count contained in the bill, and an exception will not be allowed for reversible error unless it extends to and vitiates the entire verdict. State v. Switzer, 187 N.C. 88, 121 S.E. 43; State v. Strange, 183 N.C. 775, 111 S.E. 350; State v. Toole, 106 N.C. 736, 11 S.E. 168.

Again, it is held that the power of a state to enact statutes in regulation of the manufacture, sale, and disposition of intoxicating liquors is not rested alone or dependent upon the Eighteenth Amendment to the federal Constitution, the Prohibition Amendment, but by virtue of its sovereignty, and in the reasonable exercise of its police powers, the state may, if it sees proper, establish more stringent regulations on this subject than are contemplated by the amendment referred to, with the limitation that the state may not authorize or sanction that which the national amendment prohibits, and that if, in case of concurrent legislation as therein authorized, designed to enforce the amendment, there is conflict between the federal and state law, the provisions of the federal statute shall prevail. State v. Harrison, 184 N.C. 762, 114 S.E. 830; State v. Barksdale, 181 N.C. 621, 107 S.E. 505; State v. Fore, 180 N.C. 744, 105 S.E. 334; Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 588, 64 L.Ed. 946.

Considering the record in view of these accepted principles, both of which will be found pertinent to some of the questions presented, our state statute containing the general regulations on the subject appears in chapter 1 of the Laws of 1923, commonly spoken of as the Turlington Act. Although entitled "An act to make the state law conform to the national law in relation to intoxicating liquors," it is in some respects both more searching and more stringent than the federal legislation, and contains also a saving clause as to any local acts prohibiting the manufacture, sale, or other disposition of intoxicating liquors. With this exception, however, and as to the state generally, the statute is clearly intended to and does establish the rule now prevailing on the subject where it applies and to the extent that the same is inconsistent with former legislation. The case of State v. Foster, 185 N.C. 674, 116 S.E. 561, apparently to the contrary, is decided and should be properly made to rest on the ground that the Turlington Act being prospective in its operation, and the act charged in Foster's case having occurred prior thereto, the same should be dealt with under the law as it formerly existed, and under the principles approved in State v. Perkins, 141 N.C. 797, 53 S.E. 735, 9 L. R. A. (N. S.) 165, and State v. Mull, 178 N.C. 748, 101 S.E. 89.

As applied to the facts of the instant case, the...