State v. Hardy

• Citation: 128 S.E. 152,189 N.C. 799
• Decision Date: 03 June 1925
• Docket Number: 2.
• Parties: STATE v. HARDY.
• Court: United States State Supreme Court of North Carolina

128 S.E. 152

189 N.C. 799

STATE v. HARDY.

No. 2.

Supreme Court of North Carolina

June 3, 1925

Appeal from Superior Court, Beaufort County; Cranmer, Judge.

Heber Hardy was convicted of violating the Prohibition Law, and he appeals. New trial granted.

Indictment charging defendant with violation of statute prohibiting manufacture of intoxicating liquor, etc. Verdict guilty. From judgment that defendant be confined in jail of Beaufort county for 18 months, assigned to work on the roads of the county, defendant appealed.

Counsel held justified in assuming that jury would be properly instructed as to failure of accused to testify.

H. C Carter, of Washington, N. C., for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

CONNOR J.

The state offered as evidence the testimony of Allen Whitley, who testified that he had been tried and convicted for making liquor, and had served a term of six months on the roads. He further testified as follows:

"One Sunday in September last I was on the hard-surface road about 4 miles from Washington, when a car stopped near me. A man got out and approached me. I had not seen him in 6 years, and hardly knew him. Said he wanted me to make some whisky for him. I told him that I would let him know later. The next morning I rode my bicycle to his place, near Grimesland in Pitt county, and told him that I had decided to do the work for him, and that I would come back on the following Friday to go to work. I went back on Friday, and on Saturday morning he took me in his buggy to a place in the woods, about 6 miles from his home, and showed me a still. He told me how to set up the still, and how to make the liquor. He then left. He furnished the still and appliances. The mash was already there. I built a fire after he left. This was the first time I had ever made liquor. In a little while the officers came and caught me. I told them that Mr. Hardy owned the still, and that I was making liquor for him. I had not seen Heber Hardy for 6 years, and he had not seen me. He never knew me to be connected with the liquor business. I did not know how to make liquor. He didn't tell me what he was going to give me until I went over there. He was to give me two gallons. When I got caught, I tried to run, but fell down, and then told the officers that it was Mr. Hardy's still."

J. J. Hodges testified that he arrested witness at the still. He tried to run, but fell down. He said, "Don't shoot. I am not making whisky for myself." He then told me for whom he was making whisky. I saw tracks of a buggy and horse. That day Heber Hardy was in town with his brother. He lives 6 or 7 miles from the place where the still was found. Allen Whitley lives about 15 miles from the place. Allen Whitley's reputation is good. This was all the evidence. The charge in full of the court to the jury was as follows:

"Heber Hardy is charged with the violation of the Prohibition Law. The state charges him in the bill of indictment on two counts: The manufacture of intoxicating liquor, and having property designated for use in the manufacture of liquor or intended to be used in violation of law.

"(I sent you out of the room in order to intimate to counsel what I was going to charge you. Notwithstanding that intimation, counsel has seen fit to argue the case to the jury.)" To foregoing portion of charge in parentheses, defendant excepts. This was defendant's first exception.

"(I instruct you, gentlemen of the jury, that these gentlemen are designated by the state and by the defendant to try this case; it is their business to make their side appear the best side; their reasons the best of reasons; but you and I are under different obligations. Yours is the obligation which the state has required you to take, to well and truly try this case, and a true verdict render therein, according to the evidence; you have been admonished to sit together, hear the evidence, and render your verdict accordingly. The evidence in this case is uncontradicted. I instruct you if you believe the facts to be as testified to, you will return your verdict of guilty. Take the case and see how you find it.)"

To foregoing portion of charge in parentheses defendant excepts. This was defendant's second exception.

Defendant's assignments of error, on his appeal to this court, are based upon these two exceptions. He complains that by these instructions he was prejudiced in his right to have the argument of his counsel considered by the jury, and that the judge gave an opinion as to whether the facts involved in the issue between him and the state had been fully or sufficiently proven, thus invading the true office and function of the jury.

Defendant, called to answer a criminal charge, ought not to be deprived of his liberty, as a punishment therefor, but by the law of the land. Const. of N.C. art. 1, § 17. He ought not to be convicted but by the unanimous verdict of a jury of good and lawful men in open court. Section 13. Upon his trial he, as every man who is a defendant in a criminal prosecution, has the right to be informed of the accusation against him, and to confront the accusers and witnesses with other testimony, and to have counsel for his defense, and not be compelled to give evidence against himself. Section 11. In his trial upon the indictment he is, at his own request, but not otherwise, a competent witness, and his failure to make such request shall not create any presumption against him. C. S. § 1799. Every person, accused of any crime whatsoever, shall be entitled to counsel in all matters which may be necessary for his defense. C. S. § 4515. In jury trials the whole case, as well of law as of fact, may be argued to the jury. C. S. § 203. No judge, in giving a charge to a petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and function of a jury, but he shall state in a plain and correct manner the evidence given in a case, and declare and explain the law arising therein. C. S. § 564.

These are some of the fundamental principles, clearly asserted and firmly established in the organic law of North Carolina, to which we are admonished there should be a frequent recurrence, if we would preserve our liberties. Const. of N.C. art. 1, § 29. These principles are not only essential for the preservation of the blessings of liberty for the individual; a government of law and not of men can be maintained only by a constant recognition of and jealous adherence to these principles. They are embedded, not only in our Constitution, and statutes, but in the very life of our people. Criminal statutes, enacted from time to time to meet new and changing conditions, however sound may be the policy which underlies them, or however necessary their enforcement may be to the good order of society and the happiness of individuals, will be weaved into the life of the people, becoming a part of the warp and woof thereof, only when enforced as to individuals charged with their violation, in strict obedience to these great, fundamental principles.

1. The right of every man, accused, prosecuted, or put on trial upon a criminal charge, to be heard, and to have counsel in all matters necessary for his defense, and the right of counsel to argue to the jury the whole case, as well of law as of fact, is too fundamental for discussion. It is not only the right, it is also the duty, of counsel to argue to the jury the case for the defendant, when in their judgment there is evidence or law, applicable to the case, sustaining the contentions of defendant upon the issue to be determined by the jury, and when in their opinion such argument will aid the jury in determining the issue in accordance with these contentions. Neither the contrary opinion of a judge, nor the temporary criticisms of those who have no share in the responsibility of counsel, ought to deter...