State v. Hanner

• Decision Date: 24 April 1907
• Citation: 57 S.E. 154,143 N.C. 632
• Court: North Carolina Supreme Court
• Parties: STATE v. HANNER.

57 S.E. 154

143 N.C. 632

STATE

v.HANNER.

Supreme Court of North Carolina.

April 24, 1907.

Criminal Law —Special Verdict — Sufficiency.

A special verdict to authorize a judgment of conviction must include all the essential elements of the offense, without any inference or presumption of facts; and it is not enough to state the evidence.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 14, Criminal Law, § 2092.]

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

Lee Hanner appeals from a conviction. Reversed.

The defendant was indicted in the court below for selling liquor without a license. The jury returned a special verdict in which they found that the defendant did not have a license to sell liquor. They further find that the testimony of the witnesses is true. James Eastep testified that he applied to the defendant for the purchase of a gallon of whisky, and was told by him that he could let him have a gallon for $2, express charges prepaid. The witness paid defendant $2, who gave him a receipt, as follows: "Dock Eastep. One Gal. $2.00. Paid W. L. H." When the defendant gave the receipt, he said: "If the whisky don't come, come back up here, and I will make it good. Sometimes it gets misplaced." He further said that the witness would get the whisky the next morning at the express office, as it would be there by that time. The witness went to the express office in Lexington the next morning and got theone gallon of whisky. The defendant, when he sold the whisky, told the witness that It was then in Danville, Va., and was old man Alex Bailey's whisky, and that witness knew what it was. He also said that he was agent of Bailey or Bailey Company In Danville; that he would send the order to Danville, and, If the order was accepted, the liquor would be sent direct to the witness at Lexington; and that if it did not come "he would make it good or [the witness] would get his money back." The defendant did not go with him to the express office to get the whisky. It came in the name of the witness, and was delivered to him by the express agent at Lexington. It was tagged, and on the tag was written "Dock Eastep, Lexington, N. C." The witness is called "Dock Eastep, " and may have given that name to the defendant when the liquor was ordered. There was nothing said about the defendant selling the witness any whisky, but he told him that he was the agent for another concern, and that he would send the order in to them as agent The tag was on the jug when the witness got it at the express office. D. E. Hepler testified that the defendant told him he represented Alex Bailey, and that the liquor concern was located in Danville, Va., and he was its representative. The card on his office door reads: "Bailey Distilling Co., Danville, Va." Upon the special verdict the court was of the opinion that the defendant was guilty, and the jury so found. Prom the judgment upon the verdict, the defendant appealed

Assistant Attorney General Clement, for the State.

Walser & Walser, S. E. Williams, and John A. Barringer, for defendant

WALKER, J. (after stating the case). A special verdict must include all the essential elements of the offense charged, or there can be no conviction; and it follows that, if the findings are not responsive to the allegations of the indictment, they will not sustain a judgment The jury must find the facts, and not merely state the evidence which may tend to prove them. There can be no aider of the verdict by intendment, or reference to extrinsic facts appearing in the record, and this is so, even though the circumstances stated may be sufficient to warrant an inference or presumption of the existence of the constituent facts not distinctly found. Clement-son on Special Verdicts, 291, et seq. It is said by Chief Justice Ruffin, for the court, in State v. Watts, 32 N. C. 369: "It is common learning that a verdict is defective which finds only the evidence; since the court cannot draw inferences of fact, but only apply the law to facts agreed or found. To authorize judgment for the state, therefore, on the verdict, it ought to have contained direct-findings of the necessary facts." Hawkins in his Pleas of the Crown (book 2, c. 47, § 9) states the rule to be that the court in adjudging upon a special verdict is confined to the facts expressly found, and cannot supply the want thereof, as to any material part, by any argument or implication from what is expressly found. It was accordingly adjudged in Rex v. Plummer, Kel. 111, and other cases he cites, that, where the jury failed to find an essential fact, the court could not take it (as established) from the other evidential circumstances of the fact which were expressly found, though they were as full to the purpose, as they could well be, that the omitted fact existed. And so in State v. Blue, 84 N. C. 807, it is said: "In judging upon a special verdict the court is confined to the facts expressly found, and cannot supply the want thereof as to any material part by an agreement or implication from what is expressly found. And when the facts are of an equivocal character, which may mean one thing or another, the court cannot determine as a question of law the guilt or innocence of the defendant A special verdict is in itself a verdict of guilty or not guilty as the facts found in it do or do not constitute in law the offense charged. There is nothing to do but to write a judgment thereon for or against the accused. Therefore, in finding a special verdict, the facts should be stated fully and explicitly, and the omission of any fact necessary to constitute the offense is fatal"—citing 2 Hawkins, P. C. 622. The authorities are all to the effect that the jury must state the essential facts, and not leave it to the court to supply them or any of them or to draw inferences from evidence set forth In the verdict, which must contain the ultimate facts that constitute the offense, and not those merely which may tend, though never so strongly, to show the defendant's guilt. State v. Curtis, 71 N. C. 56; State v. Lowry, 74 N. C. 121; State v. Bray, 89 N. C. 480; State v. Oakley, 103 N. C. 408, 9 S. E. 575; State v. Crump, 104 N. C. 763, 10 S. E. 468; State v. Plnlayson, 113 N. C. 628, 18 S. E. 200. In State v. Custer, 65 N. C. 339, Justice Rodman tersely states the principle: "In [passing upon] a special verdict, we are not at liberty to infer anything not directly found." The jury In this case here stated in their verdict certain facts and circumstances related by the defendant to the witness, which may tend or not to establish his guilt But, after all, they are but evidence, and not the facts themselves, upon which the law can adjudge guilt or Innocence. The facts recited tend just as much to show that the liquor was sold In good faith, to be shipped from Danville, as they do to prove that the defendant's method of selling was a subterfuge, and a mere cover by which to conceal a violation of the law, or to evade its provisions, in order to escape its penalty, and certainly it tends to prove the former fact just as fully as it does the one that the defendant sold the liquor in Lexington by himself delivering the jug at the express office for the defendant, who was to call and get it. What the defendant said to the witness, James Eastep, was amere evidence, and not the facts themselves which the jury should have found before the court could proceed to judgment. This is the fatal defect in the verdict. We would assume a jurisdiction not possessed by us, and be guessing at the true and crucial fact of guilt, if we should direct a conviction upon the present verdict. There is hardly sufficient evidence stated from which to infer that the defendant placed the whisky in the express office, or had it done, instead of having it shipped from Danville, Va., unless we are permitted, as we are not, to substitute mere conjecture for that certain and reliable proof of a fact, which the law requires to establish it.

As said by Chief Justice Shepherd in State v. Finlayson: "Evidently a very important question concerning interstate commerce was intended to...