State v. Holder

• Decision Date: 01 December 1903
• Citation: 45 S.E. 862,133 N.C. 709
• Court: North Carolina Supreme Court
• Parties: STATE. v. HOLDER.

45 S.E. 862

133 N.C. 709

STATE.

v.HOLDER.

Supreme Court of North Carolina.

Dec. 1, 1903.

INTOXICATING LIQUOR — ILLEGAL SALE — inDICTMENT—SUFFICIENCY—VENUE—LIMITATIONS—PROCEDURE.

1. Where a general verdict of guilty is rendered on an indictment containing several counts, some of which are defective, unsupported by the evidence, or vitiated by erroneous instructions, the verdict will be imputed to the sound count, if any, as to which there was no erroneous instruction, and upon which the evidence is sufficient for conviction.

2. An objection to venue in a criminal prosecution is waived unless objection is taken by plea in abatement, so that an objection for failure to prove that the offense was committed in the county in which the venue is laid cannot be first raised on appeal.

3. In a criminal prosecution, an objection that there was no proof that the offense was committed within the period of limitations for prosecutions for such offenses must be raised in the trial court by request to charge or by plea in abatement, and cannot be first raised on appeal.

4. An indictment for illegal sale of liquor which alleges a sale by defendant and another, and that such other had no license, is defective for failure to allege that defendant had no license.

5. An indictment for an illegal sale of liquor which alleged that defendants, not being druggists, sold spirituous liquor not for medicinal purposes nor upon prescription, but not stating that they had no license, was fatally defective:

v 5. See Intoxicating Liquors, vol. 29, Cent. Dig.

242.

6. In a prosecution for the illegal sale of liquor, in which the indictment alleged that the sale was by a measure less than a quart, to wit, three pints, and only one sale was shown, the court should have charged that if the three pints were sold at one time, and in one transaction, it would not sustain the charge of a sale by measure less than a quart.

Appeal from Superior Court, Cabarrus County; Neal, Judge.

Felix Holder was convicted of selling liquor without a license, and appeals. Reversed.

Montgomery & Crowell, for appellant.

The Attorney General, for the State.

CLARK, C. J. The defendant was indicted jointly with one Sides for selling spirituous liquor without license. The indictment set forth three counts. The first count charges a sale by said Sides and the defendant "by the small measure, viz., by a measure less than one quart, to wit, three pints, " alleging further that the said Sides had no license to retail. The second count charges a sale by Sides and the defendant, they not being licensed druggists, and said spirituous liquor not being sold for medical purposes only, and not upon a bona fide prescription of a legally practicing physician. The third count charges a sale by said Sides and the defendant of one pint of spirituous liquor, a local election duly authorized by statute having been held, at which total prohibition of the sale of spirituous liquor in said county had been adopted. The evidence was that the party named as purchaser in the indictment (one Tucker) had bought three pints of whisky of said Sides, and had then and there paid Holder the price of the whisky. There was no evidence of copartnership between Holder and Sides. The court charged the jury that, if they found beyond a reasonable doubt that Sides and Holder sold three pints of whisky to the witness (Tucker), it was their duty to find them guilty;otherwise not guilty. The defendant excepted, and, there being a general verdict of guilty, appealed from the judgment

The defendant asked the "court to instruct the jury that there was not sufficient evidence to convict the defendant upon any count in the indictment. The court refused, and the defendant excepted. The state admits there was no evidence on the third count, but it is well settled in this state that where there is more than one count in the indictment, and there is a general verdict, this is a verdict of guilty on each count, and if there is a defect as to one or more counts, by reason of any defect therein, or erroneous charge as to said count, or lack of evidence, the verdict will be imputed to the sound count in the indictment, as to which there was no erroneous instruction, and upon which evidence is offered. State v. Toole, 106 N. C. 736, 11 S. E. 168, where the authorities to that effect, which are numerous, are collected. It has since been often cited and approved. State v. Carter, 113 N. C. 639, 18 S. E. 517; State v. Edwards, 113 N. C. 654, 18 S. E. 387; State v. Lee, 114 N. C. 844, 19 S. E. 375; State v. Perry, 122 N. C. 1020, 29 S. E. 384; State v. Railroad, 125 N. C. 670, 34 S. E. 527; State v. Peak, 130 N. C. 712, 41 S. E. 887; and in still other cases.

The defendant, however, contends that the charge should have been given because it was not shown that the sale was in the county, nor within two years. But objection to...